One of the sad ironies in how this has developed is the question of animus. The Smith decision requires complainants to show actual animus towards them for their religious beliefs. On the gay question, however, federal judges and Justice Kennedy have held that religious opposition to gay marriage is on its face evidence of animus toward gays and cannot stand.

Sam Casey sat at the head of the largest conference table in Washington and watched open-mouthed as half the room emptied, and religious freedom was grievously wounded. It happened in an instant that July day in 1999, but had been building quietly for weeks as one of the most potent left-right coalitions in the country was sundered.

The recent legal and legislative history of religious freedom in America can be described in many ways, but ping-pong comes to mind.

The Constitution prevents the federal government from establishing a state religion but also prevents the government from hampering its free exercise. What free exercise means – and who can be hampered and how – is one of our most nettlesome issues.

Modern adjudication begins in the early 1960s with a woman named Adell Sherbert, a textile worker who converted to the Seventh Day Adventists. Her factory shifted to a six-day schedule requiring her to work on Saturday, something not allowed by her faith. The mill fired her. The state denied unemployment benefits and she sued on grounds of religious liberty. The Supreme Court ruled in her favor.

The Court established the Sherbert Test with some criteria to determine if the government had violated a person’s religious liberty. The person had to have a sincere religious belief upon which the government had placed a substantial burden for acting on that belief. The government must show there was a “compelling state interest” to burden the believer and that the government has acted in the least restrictive manner to further this compelling interest.

This is a high bar.

In the 1980s, along come Alfred Smith and Galen Black, who smoked peyote as part of their Native American religion and who also worked in drug rehab.  When the clinic found out, the pair were fired. The state denied benefits. In Employment Division v. Smith, the Court gutted the Sherbert decision and eliminated the test that had protected religious liberty. The decision hung on the fact that the two gentlemen were doing something that was illegal and the law against peyote smoking was not aimed strictly at the religious use of peyote, but peyote use in general.

The 1990 Smith decision precipitated a huge reaction from the religious community and civil libertarians. Christians of right and left, along with the secular left, were galvanized. This unique coalition, which included the ACLU, World Jewish Congress, along with the Christian Legal Society and the Traditional Values Coalition, demanded redress.

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