Exemptions After Smith

The Smith decision altered the landscape of religious liberty, both in its direct effect on the Court’s approach to the First Amendment’s free exercise clause and in the myriad responses to the Court’s decision. Today, we focus on post-Smith interpretations of the federal free exercise clause; these focus on the neutrality and general applicability analyses of Smith. Remember, Smith held that so long as a law is neutral and generally applicable, it need only pass rational-basis review.

Lukumi holds that if a law is not neutral and generally applicable, it must pass strict scrutiny: the law must be justified by a compelling governmental interest and it must be narrowly tailored to advance that interest. How would you distinguish between “neutrality” and “general applicability”? What sort of evidence does the Court look at for each?

In Masterpiece Cakeshop, the Court purports to apply Smith and Lukumi. Why does the Court hold that the government action here was not neutral? That it was not generally applicable?

In Fulton v. City of Philadelphia, a unanimous Court upheld the free exercise challenge against the City of Philadelphia. Should the Court have revisited Smith, or are you persuaded by the majority’s reasoning?

Reading Assignment:

  • Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993)

  • Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. 617 (2018)

  • Fulton v. City of Philadelphia, 593 U.S. 522 (2021)

 

Optional Reading: