For more than 15 years, members of the Sikh religion, who wear turbans, received an exemption from the federal regulation requiring construction workers to wear hard hats.
Last November, the Occupational Safety and Health Administration lifted the exception. The agency was not responding to reports of injuries, but to a Supreme Court ruling on a seemingly unrelated topic.
The court ruled that Oregon did not have to alter its drug laws to allow Native Americans to use peyote during religious rituals. In that opinion, the court established a new standard for judging whether a law impinges on religious freedom, a standard most civil liberties lawyers and religious organizations believe provides far less constitutional protection.
In the 11 months since the ruling in Employment Division v. Smith, its impact has been demonstrated not only by the rescinded OHSA rule, but in court decisions involving Hmong immigrants and Jews trying to prohibit autopsies, Muslim inmates asking not to be served pork, Amish buggy drivers arguing against traffic safety regulations and churches seeking exemptions from zoning laws and attempts to have their buildings declared landmarks.
"The problem with the decision is that the United States Supreme Court has gutted the Free Exercise clause of the First Amendment," said Forest Montgomery, counsel for the National Association of Evangelicals.
The court in Smith said that an otherwise valid law does not violate the First Amendment as long as it is not targeted at religion and affects only religious practices, not beliefs. Previously, courts had used a far stricter test: whether the infringement on religion was justified by a "compelling state interest" and was as minimal as possible.
The ruling has forged a strange coalition of religious and civil liberties groups. They unsuccessfully petitioned the Supreme Court to reconsider the decision and are now seeking a legislative solution, the Religious Freedom Restoration Act.
Sponsored last year by Reps. Stephen J. Solarz (D-N.Y.) and Paul B. Henry (R-Mich.) and soon to be reintroduced, the bill essentially would reinstate the old standard for testing federal, state and local laws. Proponents say the bill would be based on Congress's own power to enforce the provisions of the Bill of Rights.
Urging his colleagues to support the legislation, Solarz warned last year that the Smith decision "could jeopardize the use of ceremonial wine, the right of public school students to take time off for religious holidays, the exemption of church interiors from landmark laws, the practice of kosher slaughter and the right of students to wear religious garments like yarmulkes."
Among those backing the bill are groups more often fighting than agreeing on legal principles: from the American Civil Liberties Union and People for the American Way to the National Association of Evangelicals and Beverly LaHaye's Concerned Women for America.
They point to a number of recent court rulings, in addition to the OSHA action, that make Solarz's warnings more than hypothetical: When Laotian immigrant Neng Yang died suddenly at age 23, the Rhode Island medical examiner insisted on performing an autopsy. He overrode the wishes of the man's parents, Hmong refugees whose religion views autopsies as an abhorrent mutilation of the body that prevents the spirit from being set free.
Yang's parents filed suit, claiming that the forced autopsy infringed on their religious freedom. In January 1990, U.S. District Judge Raymond J. Pettine upheld their claim. Ten months later, when Pettine was deciding how much money the family should be awarded, the judge announced -- "with deep regret" and "the deepest sympathy for the Yangs" -- that the Smith decision forced him to reverse his ruling.
Just one week after the Smith decision, the justices overturned a Minnesota Supreme Court ruling that it was a violation of the free exercise right of an Amish man to display a fluorescent orange triangular emblem on his buggy -- something the Amish consider an improper worldly symbol. The justices instructed the Minnesota court to reconsider that decision in light of Smith.
The state court eventually ruled for the Amish man, who asked to be allowed to outline his buggy in reflective tape and carry a lantern instead. But noting the problems that Smith presented, it did so on the basis of the state, not federal, constitution.
The justices this week overturned a Washington state ruling granting a church an exemption from Seattle's historic preservation law. They ordered the Washington Supreme Court to review Smith in reaching its decision. The court also declined to hear a case in which a federal appeals court, citing Smith, rejected a New York church's attempt to overturn its landmark designation.
The federal appeals court in Chicago ordered a lower court to review a Muslim prison inmate's complaint about meals containing pork but noted that Smith "cut back, possibly to minute dimensions, the doctrine that requires government to accommodate, at some cost, minority religious preferences."
In a case similar to the Yang's, a federal judge in Michigan ruled against a Jewish woman after the state performed an autopsy on her son. Judaism prohibits autopsies.
"The government is almost always going to win under the reasonableness test" set out in Smith, said J. Brent Walker, associate general counsel of the Baptist Joint Committee on Public Affairs.
Smith "is being taken for all it's worth" by lower courts handling religious freedom cases, said University of Texas law professor Douglas Laycock. Laycock is representing a group of Cubans in Florida who argue that the city of Hialeah's rule restricting animal slaughter interferes with their right to practice Santeria, an Afro-Caribbean religion that includes animal sacrifice as part of worship services.
A federal judge upheld the city ordinances under the old compelling state interest test. The case is now before the federal appeals court in Atlanta where, Laycock said, the Smith decision has made his job infinitely harder.
"It's devastating to all those churches that are a little bit out of step with the modern ethos, and it's going to affect not just strange little groups like the Santeria or the Indians but lots of groups that are much more mainstream but not so mainstream that they're happy to comply with the rules and regulations of the modern administrative state," Laycock warned.
The difference, said Marc Stern of the American Jewish Congress, is not so much that religious groups would automatically win under the previous test but that with Smith in place, there is little room left for argument.
In announcing the new test set out in Smith, Justice Antonin Scalia, joined by four other justices, said it would be "courting anarchy" to find that the Constitution requires carving out religious exemptions from general laws. He said it might result in "religious exemptions from civic obligations of almost every conceivable kind" -- ranging from compulsory military service to payment of taxes to required vaccinations.
Scalia acknowledged the ruling would "place at a relative disadvantage those religious practices that are not widely engaged in" but said that was an "unavoidable consequence of democratic government." Chief Justice William H. Rehnquist, and Justices Byron R. White, John Paul Stevens and Anthony M. Kennedy joined Scalia's opinion.
Justice Sandra Day O'Connor agreed with the bottom line of the ruling: that Oregon did not have to exempt Native American rituals from its drug laws. But she used the old test and criticized the majority approach, which she said "is incompatible with our nation's fundamental commitment to individual religious liberty."
Georgetown University law professor Mark Tushnet, one of the relative handful of defenders of the Smith decision, said the practical consequences of the ruling have been greatly exaggerated. He said judges were likely to be unsympathetic to especially outside-the-mainstream religious practices even under the compelling state interest test.
In addition, he said, "when something actually happens that bothers people a lot and the courts say, 'Our hands are tied,' legislatures are likely to respond reasonably. . . . The bottom line social reality is not that much different after Smith than it was before."
For example, responding to the plight of the Hmong, the Rhode Island legislature amended the state's autopsy law to provide more protection to religious groups.
But the Baptist Joint Committee's Walker said the constitutional protection for free exercise of religion was put in place precisely for the purposes of protecting religious minorities in situations where the majority -- in the form of legislatures -- was unwilling to do so.
"That's the reason for the Bill of Rights in the first place -- to take certain issues of fundamental importance outside the political process, and to say these are rights we all have, whether we are in the majority or the minority."
While the broad coalition of groups that support the Solarz bill makes its prospects good, one potential roadblock has emerged: Some believe it would strengthen abortion rights advocates' claims that legislative restrictions on abortion violate their religious beliefs.
In a letter to Solarz last month, the National Right to Life Committee warned it would oppose the legislation unless it is amended to state that it does not confer any abortion rights. It noted a similar dispute over a bill designed to overturn the Supreme Court's Grove City College v. Bell ruling -- restricting the scope of a civil rights law -- stalled that legislation for three years.