Theorizing Employment Division v. Smith: The Affective Politics of the Legal Regulation of Religion

Abstract

This commentary interrogates, first, Justice Antonin Scalia’s assertion in Employment Division v. Smith that the law must uphold the belief-action distinction in order to preserve democratic norms and, second, the affect that this distinction had on Alfred Smith’s relationship with his faith. I argue that as Smith responded to the law’s repeated requests for justification as to why his religious convictions ought to exempt him from the criminal regulation of peyote, he experienced a profound sense of legal, political, and spiritual disempowerment – a disempowerment compounded by the erasure of the complexities of his faith in both the decision and aftermath of Smith. By way of making this argument, I bring Scalia, Smith, and Smith into sustained conversation with an unlikely interlocutor: Jürgen Habermas. As one of the leading legal and political theorists of religion in the late modern moment, Habermas articulates a vision of democratic life that at once venerates public religious expression and insulates law- and policy-making institutions from faith-based influence. Habermas’s vision is often characterized by contemporary political theorists and legal academics as the ideal to which all religiously plural democracies should aspire, but when his argument is considered alongside the experiences of Smith before the Court, a powerful disjuncture between theory and practice emerges. For although Habermas encourages religious individuals to adopt an epistemic stance of public reason and to engage in cooperative acts of translation in order to settle collaboratively the appropriate limits of religion as well as the law, I argue that, when applied to Smith, these methods of discursive engagement work to not only underscore the absolute primacy of the law over religion, but also to undercut Smith’s own understanding of his faith. I ultimately suggest that this mode of inquiry – that is to say, infusing theory with nuances gleamed from the everyday legal lives of ordinary individuals – generates new pathways through which to ameliorate latent social and political harms.