Like all of the rights guaranteed by the Bill of Rights, the right to freely exercise one’s religion is not unlimited. In Employment Division v. Smith, Justice Scalia wrote that laws both neutral and generally applicable do not violate the Free Exercise Clause of the First Amendment, even if they incidentally burden religion.

The U.S. Supreme Court provided two main surprises this past June in Fulton v. City of Philadelphia. First, the Court ruled unanimously in favor of Catholic Social Services (CSS) and for religious liberty. Second, the Court declined to revisit Smith.

Chief Justice Roberts, writing for the Court, considered it significant that the contract governing the CSS-City relationship allowed exceptions at the sole discretion of the Commissioner of the Department of Human Services. The mere existence of this possibility rendered the law not generally applicable and placed the case outside of Smith’s domain. As such, the contractual non-discrimination requirement was subjected to strict scrutiny analysis and it failed to pass the high burden.

In a concurring opinion, Justice Alito, joined by Justices Thomas and Gorsuch, criticized the Court for not directly providing an answer on whether Smith should be revisited. Criticizing the rule of Smith and its methodology, Justice Alito favored overruling Smith altogether and subjecting neutral and generally applicable laws to heightened scrutiny when they burden religious exercise.

Addressing Justice Alito’s opinion, Justice Barrett, joined in full by Justice Kavanaugh and joined in large part by Justice Breyer, posed the quintessential question over overruling Smith: how would religious liberty cases fare differently without Smith? Justice Alito said he would overrule Smith and readopt a standard that “was abruptly pushed aside” by Smith. He would hold that “[a] law [imposing] a substantial burden on religious exercise can be sustained only if it is narrowly tailored to serve a compelling government interest.”

That standard was first laid out in Sherbert v. Verner, where the Court held unconstitutional the denial of unemployment benefits to a woman whose unemployment was a result of her religious beliefs and where the ineligibility provisions allowed secular exemptions. In fact, the Court in Fulton drew on these similarities to place the CSS-City dispute outside Smith.

But would readopting the Sherbert standard change the outcome of religious liberty cases? Empirical studies do not indicate so. One found that regardless of whether the Sherbert standard was applied as a constitutional framework under the Free Exercise Clause or as a statutory framework under federal law, the government more often than not prevailed against claimants who sought religious exemptions. Another found that 80% of the free exercise cases decided by federal appellate courts and the Supreme Court between 1980 and 1990—a period post-Sherbert and pre-Smith—resulted in government laws surviving strict scrutiny analysis.

Though Justice Scalia thought that allowing religious exemptions to any law would “be courting anarchy,” he also made it clear that his decision was in sync with several cases that upheld government laws that had been subjected to heightened scrutiny. And the reason that Smith followed these post-Sherbert cases was that all of these laws were both neutral and generally applicable. In effect, Smith saw itself as taking these religion cases that were decided after Sherbert and issuing a Restatement on religious free exercise law. One professor has argued that Smith tracked Sherbert and its progeny so closely that Smith can be described as a “mercy killing” of Free Exercise Clause claims.

Justice Alito believes that overruling Smith would have significant consequences in the realm of religious liberty. If that is true, then the Court overruling Smith would not be an end-all, but a prologue to a second look at the Sherbert era.


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