The Alabama Anti-immigration law will face its first judicial scrutiny today. The United States Department of Justice and multiple other private plaintiffs will present their arguments why HB56 should be temporarily enjoined from going into effect next week until a final trial. Several churches and religious leaders are plaintiffs because of the laws impact on their respective ministries.

Does HB56 infringe on the religious liberty of churches, faith-based organizations and religiously-motivated Good Samaritans? Unequivocally and absolutely. By doing so though, is the First Amendment to the US Constitution violated? It is a close call.

While I certainly believe the law infringes on churches’ and people’s liberty, I have been concerned from the beginning whether the federal courts would provide the necessary protection for those churches.

A fairly unknown case in the late 80’s penned by Justice Scalia dramatically altered religious liberty jurisprudence in the US: Employment Division, Department of Human Resources of Oregon v. Smith. Commonly known as the “Payote case,”  it involved Native Americans and their religious liberty to use “payote.”

Two Native Americans who worked as counselors for a private drug rehabilitation organization, ingested peyote — a powerful hallucinogen — as part of their religious ceremonies as members of the Native American Church. As a result of this conduct, the rehabilitation organization fired the counselors. The counselors filed a claim for unemployment compensation. The government denied them benefits because the reason for their dismissal was considered work-related “misconduct.”

Those Native Americans sued.

Until the Smith decision, the Court operated under the “balancing test” established in Sherbert v. Verner, whereby governmental actions that substantially burden a religious practice must be justified by a “compelling governmental interest.”  In Smith, the Court determined that “generally applicable laws” that only incidentally restrict liberty of “religiously motivated actions” would not necessarily in violate of the First Amendment. In other words, unless the law singled outreligious actions, it could pass constitutional muster.

HB56 is such a “generally applicable law;” it restricts the liberty of everyone not just religious people.

Cornell Law Professor Steve Shiffrin sees this same potential problem but also identifies a possible saving exception:

At first glance, the religious challenge to the law would seem doomed. Employment Division v. Smith held that a generally applicable statute that hits religion does not give rise to a freedom of religion issue. On the other hand, Smith contains an exception for those religion claims that can be combined with another constitutional claim (the hybrid exception). The complaint as filed alleges a number of hybrid rights including association and equality. If the Bishops win on this claim, the case will surely go to the Supreme Court unless the Alabama law is wholly preempted by conflicting federal law.

Missing from the original complaint, however, is an even stronger claim. The Alabama Constitution (one of the longest in the world) specifically refers to and  rejects Employment Division v. Smith (nothing prevents the states from affording more generous religious protection than provided by Smith). I would think this should be added to the original complaint if it has not been done so in the past week.

In the second paragraph, the professor references the Alabama Religious Freedom Amendment (1998) to the Alabama Constitution of 1901. The preamble to the Amendment declares: “Federal and state laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.”

I do not believe including a complaint based upon the state amendment would have bolstered the federal case though, as the professor seems to intimate.  Federal courts do not care what additional protections a state may provide its people; federal judges only are concerned whether the state laws fail to meet the minimal standards of the federal constitution. If unsuccesful before this court, perhaps the church leaders should bring a separate suit in a state court, as well.

I present this by way of caution. I am afraid that if the court strictly applies the Smith rationale, it may not find that HB56 violates the First Amendment. Beason, Hammon, and Hubbard will proclaim their vindication if the court decides its is not unconstitutional on First Amendment grounds. However, just because it meets the minimal hurdle of the First Amendment does not mean it does not restrict religious liberty.

Accordingly, whatever the outcome of the today’s litigation, the churches and people of Alabama must continue to oppose this legislation politically and hopefully repeal it.

UPDATE: Reports via Twitter feed show that the judge did not receive the churchmen’s arguments too well.