Opposition to Deborah Cook's Nomination to the U.S. Court of Appeals for the Sixth Circuit

Religious liberty

As an organization that has worked for more than twenty years to defend and preserve the fundamental right of all Americans to religious liberty, we are particularly concerned about Justice Cook’s dissent in Humphrey v. Lane, 728 N.E.2d 1039 (Ohio 2000). In that case, Cook, the sole dissenter, advocated a position that would needlessly have harmed religious liberty. The case concerned a uniformed corrections officer, Wendall Humphrey, who had been employed for more than a decade by the Ohio Department of Rehabilitation and Correction (“ODRC”). ODRC’s dress code prohibited uniformed male employees from having hair longer than collar length. Humphrey, a Native American whose religious beliefs prohibited him from cutting his hair except on certain occasions, tucked his hair under his uniform cap while on duty. Although it was undisputed that Humphrey’s hairstyle had not interfered with his ability to perform his job properly, ODRC said it would fire him unless he cut his hair to collar length.

Humphrey sued, claiming that ODRC’s policy violated his right to the free exercise of religion under the Ohio Constitution. The trial court agreed. The court, noting that when Humphrey wore his hair under his cap it was “impossible to tell that his hair [was] longer than 1 or 2 inches,” 728 N.E.2d at 1046, held that allowing Humphrey to wear his hair under his cap was “a less restrictive means” of furthering ODRC’s interest, and at the same time did not interfere with Humphrey’s exercise of his religious beliefs. Id. The court of appeals reversed.

At issue before the Ohio Supreme Court was whether the Court should continue to review a “generally applicable, religion-neutral state regulation that allegedly violates a person’s right to free exercise of religion” under the Ohio Constitution by determining “whether the regulation serves a compelling state interest and is the least restrictive means of furthering that interest,” 728 N.E.2d at 1043, or whether it should adopt the new standard of review under the federal Constitution created by a majority of the U.S. Supreme Court in Oregon Dept. of Human Resources, Emp. Div. v. Smith, 494 U.S. 872 (1990). Under the Smith test, which was a departure from long-standing federal precedent, “generally applicable, religion-neutral laws that have an incidental effect of burdening religious practice need not be justified by a compelling state interest.” 728 N.E.2d at 1043. The Ohio Supreme Court, noting the different wording of the free exercise of religion guarantees contained in the state and federal Constitutions, 6 held that the Ohio Constitution “is broader” in protecting that right and refused to apply the Smith test under its own Constitution. 728 N.E.2d at 1045. The Court ruled that, under the Ohio Constitution, and as found by the trial court, ODRC could “further its compelling interest of a uniform grooming policy through a less restrictive means than the policy it currently employs.” 728 N.E.2d at 1047.

By contrast, Justice Cook, the only dissenter, would have allowed ODRC to fire Humphrey unless he cut his hair, in violation of his religious beliefs and despite the fact that his hair could be tucked under his cap and did not interfere with his job performance. Cook would have effectively nullified the independent protections of the Ohio Constitution and adopted the federal Smith rule written by Justice Antonin Scalia, asserting that to do otherwise could “open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” 728 N.E.2d at 1049 (quoting Smith). Of course, since Smith was a departure from existing precedent and no such civic chaos had occurred prior to Smith, this fear was unfounded. It also bears noting that the Smith decision was strongly criticized by a broad and diverse coalition of both conservative and progressive religious groups and civil liberties organizations because of the harm it posed to religious liberty. Moreover, Smith was repudiated by a substantial bipartisan majority of Congress through passage of the Religious Freedom Restoration Act (later struck down in City of Boerne v. Flores, 521 U.S. 507 (1997)). Justice Cook’s willingness to adopt the harmful and much-criticized Smith rule even under the independent and more protective provisions of her own state Constitution should be deeply troubling to anyone concerned about religious freedom in this country.

6. In particular, the Ohio Constitution states: “nor shall any interference with the rights of conscience be permitted,” 728 N.E.2d at 1044, whereas the First Amendment of the federal Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....” (Emphasis added.)
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