It's (Still) Time to Overrule Smith

The Supreme Court should hear a new case to correct an old error

The Intersection of Church and State by Ben Mcleod

One of the most well-known religious freedom cases is Employment Division v. Smith. The 1990 opinion authored by Justice Scalia held that free exercise claims require only “rational basis scrutiny” (the lowest level of constitutional protection) when a law or regulation is “neutral” and “generally applicable.” This new standard differs from the “strict scrutiny” review (the highest level of constitutional protection) that the Supreme Court had applied in some of its previous free exercise decisions.

It turns out that most laws are neutral and generally applicable. And that means that most laws evaluated under Smith’s framework will not face rigorous constitutional scrutiny from free exercise challenges. Unless, that is, there are ways to complicate the meaning and significance of “neutrality” and “general applicability.” Indeed, in the 30+ years since Smith announced its new criterion, courts and scholars have expanded the meaning of both terms. A related development has been to suggest that neutrality and general applicability have different substantive meanings (Smith’s author, Justice Scalia, assumed they were interchangeable).

Courts and scholars have paid particular attention to the meaning of general applicability, and some of them have suggested that even a single exception to a law or regulation renders it not generally applicable. As the Court’s per curiam opinion in Tandon v. Newsom contended: “[G]overnment regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.” This standard suggests that free exercise protections hinge on identifying “comparable” secular activities—an analysis that proved particularly complex during the COVID era of social distancing and other restrictions.

Smith’s holding has been defended by a number of scholars. But it is, and always has been, wrong. And it creates a cumbersome doctrinal framework that has us asking the wrong questions about the meaning of free exercise.

The Supreme Court came close to overruling Smith in its 2021 decision, Fulton v. City of Philadelphia. Indeed, a number of court watchers have suggested that Justice Alito’s lengthy concurrence in that case began as a majority opinion overruling Smith until he lost at least one vote along the way.

This week, I joined some of the nation’s leading law and religion scholars in an amicus brief* urging the Supreme Court to take up a decision from the New York State Court of Appeals that would allow the Court to revisit its decision in Smith. Our brief notes that “Smith has faced unequivocal calls for reexamination by many members of the Court in concurring or dissenting opinions; widespread condemnation in the legal academy; attacks from Congress and state legislatures; and contemporary censure by the public.” We emphasize that the Court’s “general reluctance to fully embrace Smith in subsequent free exercise cases has muddled the law . . . leading to confusion in the lower courts” and (quoting Justice Gorsuch) argue that “Smith’s rules about how to determine when laws are ‘neutral’ and ‘generally applicable’ have long proved perplexing.”

We conclude by suggesting a different standard in place of Smith:

Most obviously, the Court could return to the pre-Smith compelling-interest test. That test sets a strong but workable standard. To curtail the perceived subjectivity of the compelling-interest test, the Court could direct judges to identify specific government interests that were viewed at the Founding as inherent limitations on natural rights related to religious liberty, which could result “in a smaller and more determinate set of interests” than what lower courts frequently deem “compelling” under [statutory free exercise analyses]. This historically grounded approach to strict scrutiny would help discipline the doctrine and align it with the Court’s recent decisions protecting other fundamental rights. Some of these alternatives are no doubt better than others. But any of them would be a dramatic improvement to Smith’s total abdication of review. Whatever questions may arise in future cases, reconsidering Smith now will ensure that courts answer those questions in a manner more consistent with the Constitution’s promise of free exercise and religious liberty.**

It’s past time to return clarity to the Free Exercise Clause, and I hope the Court takes this opportunity to consider that possibility by overruling Smith.

And Don’t Forget the Establishment Clause!

Of course, the First Amendment has two religion clauses: the Free Exercise Clause and the Establishment Clause. In the same week that litigators asked the Supreme Court to reconsider Smith, a different federal court heard testimony about a Louisiana effort to bring the Ten Commandments into public schools.

On Wednesday, I joined Carolyn Bruck on America on the Docket to discuss that case:

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* Thanks to the great team at Gibson, Dunn, and Crutcher for representing us on this brief.

** I have edited this quote and its internal citations for readability—you can find the full quote at the end of the brief.