Should Lower Courts Continue to Apply Employment Division v. Smith?

The Supreme Court in 1990 in Employment Division v. Smith held that a rational regulation that burdened the free exercise of religion got a pass if it was “neutral” as to religion and “generally applicable.” Smith engendered a hailstorm of criticism, but the lower courts have dutifully applied it ever since. This is in accord with the Supreme Court’s statement in Hutto v. Davis that, “unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.” And in the normal situation, that is as it should be. But recent developments in other cases raise the question of whether the lower courts should continue to apply Smith or whether the Supreme Court has effectively abrogated it.

A decision similarly subject to widespread criticism from the moment of its issuance was Lemon v. Kurtzman, in which the Supreme Court in 1971 set out a three-part test to assess whether a particular state action violated the Establishment Clause. Despite that criticism, the lower courts continued to apply the Lemon test until the Supreme Court’s 2022 decision in Kennedy v. Bremerton School District. In Kennedy, the Court did not formally overrule Lemon, but it chided the Ninth Circuit for applying the Lemon test when the Supreme Court had not used it for a decade and when various members of the Court had criticized it since its issuance. The Court subsequently—in its 2023 decision in Groff v. DeJoy—described Lemon as “abrogated.”

Hill v. Colorado provides a similar example. The Supreme Court in that case upheld a law that put a 100-yard “buffer zone” around abortion clinics, forbidding pro-life advocates to contact those entering the clinic within that zone, even though it encompassed public sidewalks, areas traditionally used for speech and assembly by the public. Hill was sharply criticized from its issuance in 2000, including by several Justices, and the Court in its 2022 decision in Dobbs v. Jackson Women’s Health Organization identified Hill as a precedent distorted by abortion case law stemming from Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, both of which the Court overruled in Dobbs. Despite this signal of disapproval, localities with similar buffer zone ordinances, including New York’s Westchester County, have successfully relied on Hill post-Dobbs to defend them from attack. When two such cases reached the Supreme Court on petitions for certiorari, Justice Thomas dissented from denial of review, noting that lower courts were still relying on Hill. At the same time, Justice Thomas basically argued that, whether or not expressly overruled, Hill was effectively dead and should no longer be followed. “I do not see what is left of Hill,” he said, noting that “Hill’s abandonment [by the Court] is arguably even clearer than Lemon’s,” while bemoaning the Court’s failure to take the opportunity to correct those lower courts still wrongly applying it.

Which brings us to Smith. In the 2021 case of Fulton v. Philadelphia, the Supreme Court accepted for review the question of whether Smith should be overruled, but a majority then distinguished Smith on the facts of the case, finding that the law that burdened the free exercise of the petitioner was not “generally applicable.” Three Justices would have gone further, with Justice Alito (joined by Justices Thomas and Gorsuch) penning an extensive opinion arguing that Smith was inconsistent with the history and purposes of the Free Exercise Clause and so should be overruled. Justice Barrett (joined by Justice Kavanaugh and partly by Justice Breyer) wrote separately to state that she was persuaded that Smith was wrongly decided, but that she wasn’t ready to overrule Smith because she was not sure what standard of review should be applied when a neutral and generally applicable statute burdened free exercise in particular types of cases.

So should the lower courts continue to apply Smith? When five sitting Justices have said it was wrongly decided, that seems to make just as strong a case for abrogation by the Supreme Court as ten years of non-use did for the Lemon test, if not stronger.

Two principal considerations argue against it. First, in Kennedy, Justice Gorsuch factually distinguished Smith, implying that it still had life. Second, in Fulton, Justice Barrett held up because she did not then want to decide what test to use if Smith is overruled. But neither consideration forbids the lower courts from abandoning Smith now.

As to the Court distinguishing Smith in Kennedy, that can be understood simply as a way to avoid discussing the whole issue of whether Smith continues to be viable. It did not apply on the facts of Kennedy, so there was no reason to wade into the discussion again. After all, Justice Gorsuch, who authored the majority opinion in Kennedy, joined Justice Alito’s concurring opinion in Fulton finding Smith to have been wrongly decided.

As to what standard should be applied if Smith were abrogated or overruled, it is obvious that Justice Barrett would not apply a rational basis test, as that is what Smith applied and the very reason that she stated that Smith’s holding is inconsistent with the First Amendment. Thus, her remarks in Fulton must be understood to suggest that, when a regulation that burdens religious exercise is neutral and generally applicable, perhaps the court should apply heightened or exacting scrutiny, as the Supreme Court has done in certain situations, rather than invariably strict scrutiny, though that is the standard typically applied when the state burdens First Amendment rights. It would seem wholly legitimate, then, for the lower courts to apply, at a minimum, heightened scrutiny when reviewing a law imposing a burden on free exercise when the law would qualify under Smith as neutral and generally applicable.

If a lower court were to apply heightened scrutiny in a situation otherwise covered by Smith, it would not be acting disrespectfully to the Supreme Court or threatening anarchy. It would, instead, be following the Supreme Court’s own lead by giving weight to the opinion expressed by five Justices in Fulton that Smith—by applying a rational basis test when neutral and generally applicable laws burden free exercise—misreads the First Amendment. Applying exacting or heightened scrutiny in such cases would respect, not reject, the high court’s guidance. Indeed, the explicit statement of five Justices in Fulton that Smith was wrongly decided is a much stronger signal that the lower courts should no longer apply it than the Court gave by its simple non-use of the Lemon test or by the Court’s statement in Dobbs that Hill was the warped result of the Roe jurisprudence.