Responsible Religious Freedom: Factual Scrutiny in Free Exercise Doctrine

Abstract

Abstract The state of the Free Exercise Clause in U.S. constitutional law is uncertain. With an opportunity in Fulton v. Philadelphia to clarify the vitality of the current standard from Employment Division v. Smith, the United States Supreme Court has declined to do so. The lasting impact of Smith has been to move away from directly requiring government justifications for infringing free exercise. Instead, courts now use neutrality and general applicability as heuristics for government justification. Yet, relying solely on neutrality and general applicability to proxy for government justification when infringing religious exercise distracts courts from conducting a fact-based inquiry. This article demonstrates how more scrutiny of the legislative facts in free exercise doctrine may serve as a viable alternative to Smith’s flawed approach for evaluating government justifications. The author first shows empirically how more factual scrutiny—directly requiring the government to justify its actions with evidence—can benefit government and religious claimants and then discusses the normative advantages of a fact-intensive approach to constitutional scrutiny. During a moment of sharp division over religious freedom and other competing rights, factual scrutiny can be a powerful tool for handling free exercise challenges and promoting responsible religious freedom.