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07/19/2020

Ian Huyett: How to Overturn Employment Division v. Smith
Michael Ramsey

Ian Huyett (J.D. Washington and Lee University '18) has posted How to Overturn Employment Division v. Smith: A Historical Approach (Regent University Law Review, Vol. 32, 2020) (49 pages) on SSRN.  Here is the abstract:

Over the last decade, justices on both sides of the Roberts Court have demonstrated a growing willingness to give the Free Exercise Clause substantive power: a trend that stands in stark contrast with the Rehnquist Court’s decision in Employment Division v. Smith. The Court’s references to Smith have also become visibly — and fittingly — awkward and halting. In this article, I argue that the time has come to push for an explicit reversal of Smith, and that such a decision would not only be joined by Chief Justice Roberts, but likely by Justice Kagan as well. Exploring the history of the Free Exercise Clause, I argue that Smith contradicted the Clause’s original intent, and that the nineteenth-century decisions on which Smith relied were little more than brazen codifications of anti-Mormon bigotry. I conclude that Justice Scalia’s majority opinion in Smith fails every metric of sound jurisprudence, and that a bipartisan coalition of justices can be persuaded to discard it as an aberration.

(Via Larry Solum at Legal Theory Blog, who comments: "A somewhat dated understanding of originalism.")