The Uncertain Good of Overruling Employment Division v. Smith

Abstract

In this Essay I express my misgivings about the possibility that the Supreme Court may decide this Term to overrule Employment Division v. Smith, a 1990 decision on the First Amendment right to the free exercise of religion. When Smith was handed down, it was enormously unpopular across the political spectrum and among legal scholars, including myself. I continue to believe that Smith’s interpretation of the Free Exercise Clause should be overruled, but I’m concerned that the Court is apt to replace it with an interpretation that is no better and perhaps even worse. In Smith a 5-4 majority of the Court held that, with limited exception, the Free Exercise Clause does not provide claimants with a means of securing court-ordered exemptions from generally applicable laws that substantially burden their religious liberty. For thirty years, if not longer, the Court had been interpreting the Clause as providing religious liberty claimants with just such a means. The broad disapproval that greeted Smith in 1990 culminated in 1993 with Congress’s virtually unanimous enactment of the Religious Freedom Restoration Act. The Act, which the Court struck down in 1997 as applied to state and local government, explicitly reinstated the pre-Smith approach. Drawing on opinions by the Justices in the past decade, I argue that a majority of the Court seems poised to overrule Smith and put in place a very different conception of religious liberty than the one reflected either in Smith or in the pre-Smith case law. I suggest that the conception reflected in the pre-Smith case law is one the Court would do well to reinstate. The conception that the Court seems ready to put in place, however, takes an overly expansive view of the Free Exercise Clause at the expense of the Establishment Clause and threatens to hobble the government’s ability to pursue effectively many important general welfare objectives. I note that although the Essay appears in a journal published by Emory University’s Center for the Study of Law and Religion, it is written in a way designed to be accessible not only to law and religion scholars. It doesn’t presuppose that readers are conversant with free exercise law.