SALT LAKE CITY — George Ricks wants to be a licensed contractor. He also wants to be a faithful Christian.
In Idaho, it’s impossible for him to be both, according to his recent petition to the Supreme Court.
Ricks believes it’s sinful to use his Social Security number to register as an independent contractor, a step required by state law. He says the Constitution’s religious freedom protections require Idaho officials to make an exception.
“He has long had concerns, based on his understanding of the Bible, that it is morally wrong to participate in a governmental universal identification system, especially to buy or sell goods and services,” his attorneys explain in the legal brief.
Only a small percentage of Christians interpret Revelations 13:16-18 the same way. Does that weaken his case?
“Religious beliefs do not have to be common to be protected.” - Douglas Laycock
It’s not supposed to, according to experts on religious freedom law. The First Amendment’s religious exercise clause is meant to be robust enough to protect even the most unique expressions of faith.
“The way the law works is that it has to be religious to you ... even if no one else believes it,” said Katherine Franke, a professor of law, gender and sexuality studies at Columbia University, where she also serves as faculty director for the Law, Rights and Religion Project.
It’s possible to make a successful religious freedom claim even when your own pastor doesn’t share your concerns, said Douglas Laycock, a law professor at the University of Virginia.
“Religious beliefs do not have to be common to be protected,” he said.
Laycock cited a 1981 case involving Jehovah’s Witnesses as an example. It involved a man who, for religious reasons, quit his job after being transferred to a role in which he was required to help assemble a tank. The state of Indiana tried to deny him unemployment benefits, noting that other Jehovah’s Witnesses at the factory were willing to be part of the production line.
“Other members of his church who were working there thought it was OK, but that didn’t mean it was OK for him,” said Laycock, who is also a professor of law emeritus at the University of Texas.
The Supreme Court ruled that the state was unlawfully violating the man’s religious exercise rights. Justices focused on his concerns, rather than trying to determine what a reasonable Jehovah’s Witness would do.
“The court said that kind of internal disagreement within a church is pretty common. The question was what does (the plaintiff) believe,” Laycock said.
It’s not up to judges to determine what counts as appropriate religious behavior, said Joe Davis, legal counsel for the Becket Fund for Religious Liberty, which represents Ricks in his case.
“Courts ... can’t say whether (a belief) is right or wrong or reasonable or unreasonable,” he said.
However, they can rule that a belief is moral or philosophical rather than religious, Franke said. For this reason, religious freedom cases sometimes involve metaphysical questions about the nature of someone’s beliefs.
“Courts tend to ask whether (a belief) bears upon the ultimate meaning of life,” she said.
This line of questioning came up recently in a lawsuit over pro-migrant activism at the border. Scott Warren, who is charged with helping two people enter the country illegally, said his faith motivated his actions, but lawyers from the Justice Department claimed his beliefs were “merely moral or political,” Franke said.
“(Warren’s) father came in and testified to his son’s sense of spirituality,” she said, noting that the trial ended with a deadlocked jury.
If you face questions about the nature of your beliefs, being able to point to a Bible verse or some other religious text that justifies your actions can strengthen your argument, Franke said. But it’s not required.
“There need not be a sacred book or text that you’re drawing from or teachings that motivate your actions. Your beliefs can be very idiosyncratic,” she said.
For the most part, men and women like Ricks only need to prove that their beliefs are “sincerely held,” Laycock said. They have to show they’re not just making something up to avoid paying a fine or to overturn a controversial law.
Such proof comes in many forms. As Warren did, people sometimes ask family or friends to describe past discussions about the belief in order to show it’s been part of their life for a long time. They might also highlight the financial or social sacrifices they’ve made to stay true to their faith, Davis said.
“When you’ve suffered consequences for your beliefs, that’s a great marker of sincerity,” he said.
Judges rarely dwell on the question for long, Laycock said. They’re more interested in determining whether a believer has been treated fairly than assessing the depth of someone’s beliefs.
“The question is, ‘Is it a sincerely held belief?’ If it is, that’s the end of the discussion,” he said.
But, as Laycock noted, it’s far from the end of the case. Having a sincerely held belief doesn’t mean your religious freedom claim will be successful.
That’s evident in Ricks v. Idaho Contractors Board, Laycock said. Judges who’ve heard the case, as well as state officials, don’t deny the sincerity of Ricks’ concerns.
“This guy’s sincerity is not in doubt. He has given up a lot of business, and thus a lot of money, to comply with his belief,” Laycock said.
However, the Idaho District Court and Idaho Court of Appeals still ruled against him, and the state’s Supreme Court denied review.
“They based the ruling on Employment Division v. Smith, a Supreme Court decision from 1990 that said if a rule is neutral and applies to everybody, then the government doesn’t have to try to accommodate (religious) people affected by it,” Davis said.
Beyond appealing to the U.S. Supreme Court, Ricks’ only potential recourse was to convince state legislators to change the law. That’s the approach justices recommended in the Smith ruling nearly three decades ago.
“Smith tried to get judges out of the business of creating religious exemptions to generally applicable laws,” Davis said. “But you have to have political weight to get exemptions (from the legislature). People like Mr. Ricks don’t have that.”
Ricks and his attorneys argue this state of affairs doesn’t live up to the robust nature of the Constitution’s free exercise clause. They hope the Supreme Court will rule in favor of the prospective contractor and change how Smith is applied in the future.
“What this case is about is asking the court to revisit whether that kind of thinking is consistent with the religious freedom commitments of the Constitution,” Davis said.
Justices will likely meet to consider Ricks’ petition in early October and announce whether they’ll hear the case sometime this fall.