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01/24/2019

Employment Division v. Smith under Attack? (Updated)
Michael Ramsey

Employment Division v. Smith (the Peyote Case) famously held (per Justice Scalia) that neutral laws of general application are constitutional under the free exercise clause even if they prohibit a core practice of a person's religion.  As discussed by Eugene Volokh, this conclusion may now be open to challenge: Will the Court Read the Free Exercise Clause as Often Mandating Religious Exemptions from Generally Applicable Laws? He explains:

[On Tuesday], Justices Alito, Thomas, Gorsuch, and Kavanaugh suggested that they would be open to revisiting this question, and to reversing Employment Division v. Smith. This came in their opinion respecting the Court's refusal to review Kennedy v. Bremerton School District, a Ninth Circuit decision upholding the dismissal of a public high school football coach for visibly praying at, among other places, the 50-yard-line after football games. The main arguments in Kennedy had to do with the Free Speech Clause, and most of the opinion dealt with that, though it ultimately concluded that there were procedural reasons why the Court was right to refuse to review the case.

But the four conservative Justices also added this:

In Employment Div. v. Smith, 494 U.S. 872 (1990), the Court drastically cut back on the protection provided by the Free Exercise Clause .... In this case, however, we have not been asked to revisit [this decision].

That's not a statement that Smith is wrong, or that those Justices would vote to overrule it -- but it certainly is a suggestion that they well might do that, and an invitation to litigants to ask for such overruling.

What's more, Justice Breyer had earlier (in City of Boerne v. Flores (1997)) made clear that he thought Employment Division v. Smith was indeed wrongly decided and should be overruled. To be sure, Breyer didn't join the four conservative Justices in Kennedy; but that might be because he disagreed with other parts of their opinion, and saw no need to write a separate opinion expressing his own views. (Many Justices don't write or join opinions related to the refusal to hear a case.) So it looks like there might be five Justices, and not just four, that are at the least open to overruling Smith.

If there is an attack on Smith, it will almost surely involve appeals to original meaning.  As I noted in this article, Justice Scalia's argument on original meaning in the Smith case was surprisingly weak -- he primarily seemed to rest on the proposition that the claimants had not shown any original meaning in support of their position, rather than any affirmative originalist evidence in support of his position.  Scalia provided some originalist evidence in support of Smith in his concurring opinion in Boerne v. Flores, but in the meantime originalist law professor Michael McConnell wrote a comprehensive article defending the opposite view: Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109 (1990).  [Sorry, no link; the Chicago Law Review annoyingly does not have its back issues online].  Thus Smith is exposed to originalist attack, as academically oriented Justices like Thomas and Gorsuch surely know.

UPDATE:  Here is a link to Professor McConnell's article (thanks to Will Baude for the pointer & apologies to the Chicago Law Review -- apparently I was not looking in the right place).