Second-Best Free Exercise

By Christopher C. Lund

The future of the Free Exercise Clause is up in the air.  Thirty years ago, in Employment Division v. Smith, the Supreme Court held the Free Exercise Clause only protected against religious discrimination and did not require exemptions from neutral and generally applicable laws.

Yet despite having an official rule against religious exemptions, the Roberts Court has somehow managed to give religious exemptions in case after case.  This illustrates Smith’s waning power—the case has become more of an obstacle for courts to work around than a precedent for courts to obey.  But these victories have also come to shape free exercise doctrine in ways that few could have predicted and in ways the Smith Court might not even recognize.

The Court’s new regime has many positive features.  Its recent cases awarding religious exemptions have been based on a robust theory of equality that has genuine normative appeal.  But these pluses go hand in hand with some negatives and some question marks.  Smith’s core concepts have become deeply indeterminate and thus manipulable; other features make it particularly hard for religious minorities to bring claims; underneath it all lies the fact that general applicability is a concept that turns heavily on arbitrary factors, introducing a great deal of sheer luck into the process.  Concerns about judicial restraint and federalism have been totally lost, and open judicial balancing of interests—the one thing Smith most sought to avoid—has been tacitly reintroduced through the back door.

The Roberts Court has been making lemonade out of the lemon it was given, which is understandable.  But the Court’s new theory of free exercise is a theory of the second best, and it bears the familiar scars of such theories.  The Court could move to the narrowest form of Smith, one centered around intentional discrimination, which would be conceptually clean but would basically mark the end of free exercise.  Another approach, and a better one, would be to throw off Smith’s shackles and dive back into a regime of religious exemptions.  But either way, probably the one thing most difficult to imagine is that the Free Exercise Clause will stay the same for much longer.