Cert Petition Urging Overruling of Smith

The Becket Fund has filed a certiorari petition in a case called Ricks v. Idaho Board of Contractors. Ricks, who applied for an Idaho license to be able to practice his livelihood as a construction contractor, objected to the requirement of providing his social security number (he believes, as a small but non-negligible number of people have regularly believed, that it’s the “mark of the beast” in Revelation 13:16-18). The petition urges the Court to overrule Employment Division v. Smith and subject even “neutral and generally applicable laws” to meaningful scrutiny under the Free Exercise Clause.

Ten religious liberty scholars, including yours truly, have signed an amicus brief supporting the petition. Tom Hungar and others at Gibson Dunn drafted and filed the brief on our behalf. From the summary of argument:

Smith is ripe for reconsideration, and this case presents an excellent opportunity for the Court to engage in that endeavor. Smith itself was a departure from this Court’s previously settled requirement that the government demonstrate a compelling interest before imposing a substantial burden on the free exercise of religion. The question of the proper interpretation of the Free Exercise Clause was not briefed in Smith, but it has been substantially elucidated by subsequent academic work. That scholarship reveals that the Framers understood the Clause not merely as embodying an equal protection principle that prohibits targeting or discriminating against religion, but also as a substantive protection granted to religious practices even in some circumstances where similar secular conduct can be prohibited. The Smith Court’s undue contraction of the protections afforded by the Free Exercise Clause inevitably falls hardest on adherents of minority religions—the very individuals that the Clause was adopted to protect.