The need to take into account the majority or minority placement of those seeking equality of religious freedom arises also in view of the latest developments in US religious freedom jurisprudence. Discrimination between mainstream and minor??ity religions was not often explored in US Supreme Court cases. However, in the pre-Smith case, Larson, the Court struck down a state law that exempted, from registration for the purposes of charitable solicitation, religious organizations that solicited less than fifty percent of their contributions from non-members, but not those that solicited above this share from non-members: ‘Free exercise thus can be guaranteed only when legislators – and voters – are required to accord to their own religions the very same treatment given to small, new, or unpopular denomi??nations’, noted the Court. However, this test was overlooked in later developments in US religious freedom jurisprudence.
Analysis of the ruling in Employment Division v. Smith shows how the test formu??lated by the Court, whether the law is neutral and generally applicable, gives little attention to whether the law impacts differently on religious majorities and minor??ities. Laws that are generally applicable and neutral tend to consider the interests of majorities rather than minorities, not necessarily intentionally. The facts of Smith itself exemplify this assertion. The use of peyote was prohibited under the state drug laws, with no exemption for sacramental use. The prohibition on use of peyote, with no exemption for sacramental purposes, is general. But the lack of exemption is relevant only to a religious minority. But if the general category is framed as prohibition on use of intoxicating substances used for sacrament, incon??sistently peyote is prohibited but wine is not. In the process of legislation, the majority is more likely to ban a substance used by a minority. The argument of minority protection was mentioned in passing in the concurring opinion and in the dissent in Smith.
In Church of the Lukumi Babalu Aye v. City of Hialeh, the Supreme Court decided that when an ordinance is narrowly tailored and targeted to fit a specific religion it is not neutral and must pass the more stringent ‘strict scrutiny’ test. This decision provides important protection for minority religions, but it does not change from the Smith formula.
The problem is evident in a lower court’s application of the Smith test, regard??ing the Jewish eruv. A municipal ordinance prohibited placing any thing on public poles. Religious Jews had placed wires to mark an eruv, a boundary that, under Jewish law, permits carrying or pushing outside the home objects (including wheelchairs and prams) in the Sabbath. The Court found merit in the eruv sup??porters’ free exercise claim because the law was only enforced against them and not others who contravened it. But had this not been the case, the analysis under the ‘generally applicable and neutral’ test would mean that the city could have taken down the eruv. Of course, the law is applicable to all religions, but it is only relevant to the practice of one religion. The only case in which a minority is given consideration under the post-Smith rationale is when it has been specifically tar??geted. In all other cases, in which some religious groups are placed at a relative disadvantage, the discriminatory result is disregarded.
It seems that an individualistic conception of religious freedom has led to unequal protection of religious freedom of members of minorities. But this need not and should not be the case. The majority or minority context should be taken into account when determining religious freedom, otherwise equality in according this right is impaired. This does not detract from the nature of the right as an individual right.