Fragmenting Free Exercise
In 1990, the Supreme Court decided Employment Division v. Smith. The case involved a challenge to the denial of a religious exemption for the use of peyote by members of the Native American Church. Justice Scalia’s opinion for the Court rejected the free exercise claim and concluded that neutral laws of general applicability need only pass rational basis scrutiny to survive constitutional challenge—a much lower standard than the one suggested in Sherbert v. Verner and Wisconsin v. Yoder.
How does Scalia distinguish Sherbert and Yoder? Are his efforts convincing? More broadly, why do you think that Justice Scalia reached this conclusion on the standard for review? What do you think is the proper standard in this realm: rational basis, intermediate scrutiny, strict scrutiny, or something else? Should the standard change if a law is not neutral or generally applicable?
Many commentators believe that 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 with the flurry of activity that followed the Court’s decision. Today, we will focus on Smith, the Religious Freedom Restoration Act (and the Court’s subsequent narrowing of RFRA in City of Boerne v. Flores), and post-Smith responses at the state level. In our next class, we will turn to post-Smith interpretations of the federal free exercise clause.
Employment Division v. Smith, 494 U.S. 872 (1990)
City of Boerne v. Flores, 521 U.S. 507 (1997)
Optional Reading:
Howard Gillman and Erwin Chemerinsky, “The Weaponization of the Free-Exercise Clause,” The Atlantic (September 18, 2020)
Linda Greenhouse, “Religious Crusaders at the Supreme Court’s Gates,” New York Times (September 12, 2019)
Asma T. Uddin and Howard Slugh, “A Way for the Supreme Court to Protect Religious Minorities,” New York Times (November 4, 2020)