William Bentley Ball is not a household name. Even among lawyers, references to “Bill Ball,” as he was once known, rarely prompt a meaningful reaction. “I’ve never heard of him,” most law professors and students would likely respond if asked.
And yet, more than 50 years ago, this little-known Pennsylvania lawyer helped change the course of American legal history.
In the early 1970s, William Bentley Ball argued Wisconsin v. Yoder before the US Supreme Court. In Yoder, the Court was asked to decide whether Wisconsin could compel Amish families to send their children to school beyond eighth grade. For the Amish, this compulsory school-attendance law was untenable because, at this time in life, an Amish child is to “grow in his faith and his relationship to the Amish community” by “acquir[ing] Amish attitudes favoring manual work and self-reliance and the specific skills needed to perform the adult role of an Amish farmer or housewife.”
Although Ball was a devout Roman Catholic, he understood the fight for the Amish as one of paramount importance to all sincere religious believers. When he argued Yoder at the Supreme Court, in fact, the notes that he brought to the podium included a reminder, written in all capital letters, that Wisconsin threatened the “destruction” of the Amish faith community.
If Wisconsin could destroy the Amish, Ball thought, what religious minority might the next state attempt to destroy?
In Yoder, Ball persuaded a unanimous Court to hold that even facially neutral laws—such as Wisconsin’s compulsory school-attendance law—are unconstitutional if they do not satisfy strict scrutiny, a judicial test that requires the government to demonstrate that it is advancing a “compelling” regulatory interest in a way that “least restricts” a fundamental constitutional right. Because Wisconsin could not explain how the “speculative gain” that might accrue from “an additional one or two years of compulsory formal education” justified “gravely endanger[ing], if not destroy[ing],” the free-exercise rights of the Amish, the Court ruled against the government in Yoder.
Despite Ball’s success in Yoder, the Court, nearly two decades later, sharply curtailed the laudatory effects of its decision in Employment Division v. Smith. In that case, Justice Antonin Scalia led a 6-3 majority of the Court to find that “neutral” laws of “general applicability” must satisfy a far less stringent standard of review to pass constitutional muster. Indeed, Smith held that such laws would only be subject to rational basis review, which merely requires the government to demonstrate that it has a legitimate regulatory interest and that there is a rational connection between the government’s chosen means of regulation and the ends it seeks to advance.
Unsurprisingly, William Bentley Ball and many other religious liberty advocates rebuked Smith as “virutal[ly] … overriding” Yoder and as representing a “stunning repudiation of the ‘judicial conservatism’” so often associated with Justice Scalia.
To be sure, post-Smith efforts to restore strict scrutiny for alleged violations of religious free-exercise rights—such as Congress’s passage (and President Bill Clinton’s signing) of the Religious Freedom Restoration Act—have done much to advance what is often described as our “first freedom.” But with Smith still on the books, not all sincere religious believers have enjoyed the constitutional protections for which Ball and the Amish once fought.
Perhaps recognizing how Smith could enable the government to unjustifiably restrict the scope of religious free-exercise rights, the Supreme Court has recently clarified the meaning of Smith’s “neutral” and “generally applicable” carve-outs from strict scrutiny. In Roman Catholic Diocese of Brooklyn v. Cuomo (2020), for example, the Court held that then-Governor Andrew Cuomo’s Covid-19-era restrictions on in-person religious worship services were not immune from strict scrutiny because his regulations treated houses of worship less favorably than comparable secular entities.
If the government can destroy the Amish without meaningful justification, what religious minority might a state try to destroy next?
At particular issue in Cuomo was one executive order that prohibited more than ten persons from attending religious services in a “red” zone, and more than 25 in an “orange” zone. According to the government, these colored zones (and their accompanying gathering restrictions) were designed to stem the spread of Covid-19. But as the Court’s decision in Cuomo illustrates, the existence of exemptions to the gathering restrictions for non-religious entities revealed that the government was not acting with constitutionally sufficient deference to religion.
The first exemption that the Court identified in Cuomo was in red zones. There, religious institutions were prohibited from admitting more than ten congregants, but “essential businesses” were exempted. In orange zones too, religious institutions were required to abide by the twenty-five-person gathering limit, but businesses were empowered to “decide for themselves how many persons to admit.” This facial discrimination, the Court concluded, required the challenged executive order to be justified by a compelling government interest and be narrowly tailored to advance that interest.
Cuomo was not the first or only case in which the Court has held that the existence of secular exemptions in laws that burden religion requires those laws to be reviewed within Yoder’s strict-scrutiny framework. But Cuomo is of particular interest today because New York is now involved in litigation that poses the question of whether Smith ought to be overruled wholesale.
And this time, the Amish are again on the front lines of American religious freedom.
In 1966, New York enacted a law requiring students to receive certain vaccines. According to this law, students who could not be vaccinated for medical reasons and students whose parents had religious objections to vaccines were exempted from the immunization mandate. Between 2018 and 2019, however, New York experienced a significant outbreak of measles, ultimately leading the state legislature to repeal the religious exemption. After three Amish schools were fined for teaching unvaccinated students whose parents had sincere religious objections to vaccination, a lawsuit was filed under the Free Exercise Clause.
In its briefs before the US Court of Appeals for the Second Circuit, the Amish plaintiffs in Miller v. McDonald argued that New York’s modified mandate (i.e., without the religious exemption) is not “neutral” and “generally applicable” under Smith and cannot withstand strict scrutiny. To support this argument, the plaintiffs first turned to Smith’s neutrality element, but ultimately failed to persuade the Second Circuit that New York’s regulation is not, in fact, neutral. Unlike in Cuomo, where the government “‘single[d] out houses of worship for especially harsh treatment,’” in Miller, the Second Circuit found that New York’s immunization requirement applies to “all schoolchildren who do not qualify for the law’s medical exemption.”
Having rejected the Amish plaintiffs’ argument that New York’s mandate is not neutral, the Second Circuit considered whether the mandate is generally applicable. Following two other post-Cuomo decisions on religious exemptions, the Second Circuit in Miller defined non-generally applicable laws as those that “treat[] secular conduct more favorably than religious activity” and/or “‘invite[]’ the government to consider the particular reasons for a person’s conduct by providing a ‘mechanism for individualized exemptions[.]’”
To determine whether New York’s mandate treats secular conduct more favorably than religious conduct, the Second Circuit compared the scope of the prior religious exemption to the remaining medical exemption. According to the Amish plaintiffs in Miller, the government’s exempting students from vaccination for medical reasons, but not for religious reasons, places the mandate beyond the scope of Smith’s generally applicable standard. In the Second Circuit’s view, however, New York’s mandate does not treat secular conduct more favorably than religious conduct because the medical and religious exemptions are so different in their “scope and duration.” According to the Second Circuit, “[New York’s prior] religious exemption was generalized to all vaccines for the duration of that child’s school admission,” whereas the remaining medical exemption is “granted only with ‘sufficient’ documentation of the child’s contraindication to ‘a specific immunization,’” and is temporally limited “only ‘until such immunization is found no longer to be detrimental to the child’s health[].’”
In Miller, the Second Circuit misunderstood the analytical framework demanded by the Supreme Court’s post-Smith Free Exercise Clause decisions, including Cuomo. Indeed, to reach its conclusion that New York’s regulation is neutral and generally applicable (and therefore only subject to rational basis review), the Second Circuit proceeded from the view that the immunization mandate applies to “all schoolchildren who do not qualify for the law’s medical exemption.” But even in the Second Circuit’s own framing, a mandate that applies to all students except those who do not qualify for a medical exemption cannot be generally applicable; after all, on the face of the regulation, religious and non-religious conduct is treated differently. Thus, the Second Circuit in Miller should have concluded that this differential treatment gives rise to a presumption of unconstitutionality that New York can rebut when strict scrutiny is applied.
The Amish plaintiffs in Miller have asked the Supreme Court to review the Second Circuit’s adverse decision. Should it take the case, the Court would have the opportunity to provide much-needed clarity to the lower federal courts about the current state of free-exercise doctrine.
Some legal scholars see Miller as an opportunity to overrule Smith, and others (including the plaintiffs) have argued that, even under Smith, the Second Circuit decided the case incorrectly. But regardless of whether the Court ultimately hears the case, it is clear that America’s Amish are once again on the front lines of religious freedom. And so, all proponents of religious freedom should remain mindful of the danger that William Bentley Ball identified decades ago: if the government can destroy the Amish without meaningful justification, what religious minority might a state try to destroy next?