Frederick Mark Gedicks is Guy Anderson Chair and Professor of Law at the J. Reuben Clark Law School, Brigham Young University.
In Employment Division v. Smith (1990), the U.S. Supreme Court held that the Free Exercise Clause of the First Amendment requires only minimal judicial scrutiny of laws that impose incidental burdens on religious exercise—burdens, that is, which are not aimed at believers but which believers share with the rest of the citizenry subject to the law. The decision remained controversial even after the Court clarified in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) that laws targeting religion for special burdens are constitutionally suspect and subject to “strict” judicial scrutiny. Accommodationists have long sought to overturn the Smith rule and thought their chance had come when the Court agreed to reconsider Smith in Fulton v. City of Philadelphia (2021).
In the event, the Court managed to rule for the believers in Fulton while keeping Smith largely intact. Still, six Justices indicated their dissatisfaction with Smith; two joined Justice Alito’s tendentious opinion that Smith departed from the original meaning of the “free exercise of religion,” while two others joined all or most of Justice Barrett’s short concurrence in which she listed some questions that need answering before the Court abandons Smith. First on her list is Smith as doctrinal outlier: “As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination” (emphasis added).
Justice Barrett thus throws in with the mistaken view that Smith offers less protection to the free exercise of religion than is enjoyed by other First Amendment rights. But, pace Barrett, Smith and Lukumi closely track how the doctrine of other First Amendment freedoms deals with incidental burdens. The free exercise of religion, in other words, is already protected from the incidental burdens of general laws to the same extent as other First Amendment rights.
Freedom of the Press
Take, for example, a First Amendment right Justice Barrett did not mention, perhaps because it undermines the notion that Smith is doctrinally anomalous. The text of the freedom of the press is virtually identical to that of the free exercise of religion: “Congress shall make no law . . . abridging the freedom . . . of the press” versus “Congress shall make no law . . . prohibiting the free exercise” of religion.
The Court has consistently held that the Press Clause does not exempt newspapers or reporters from the incidental burdens of generally applicable laws, even when such burdens interfere with news reporting and publication. Reporters, for example, are obligated with all other citizens to comply with court orders to disclose relevant information, including sources, to authorities investigating crimes. Branzburg v. Hayes (1972). At the same time, the Court has with equal consistency applied the freedom of the press to invalidate laws that single out the press for burdens borne by no one else, such as a tax on the special paper on which newspapers are printed. Grosjean v. Am. Press Co. (1936).
In short, the press is protected from discriminatory burdens on news reporting and publication but not from incidental burdens on those activities imposed by general laws that also bind ordinary citizens. The doctrinal structure of the Press Clause, therefore, perfectly tracks the structure of the Free Exercise Clause set up by Smith and Lukumi, which protects believers from laws that target their religious practices but not from the incidental burdens of laws that also apply to everyone else.
Freedom of Speech
The First Amendment freedom Justice Barrett did mention, and her primary example of the doctrinal anomaly of Smith and Lukumi, is freedom of speech. I once held the same position, believing that the free exercise doctrine might be enlarged to afford religious free exercise the same protection the First Amendment grants to speech and expression . Though I resisted the conclusion at the time, it is clear that protecting freedom of religion like freedom of speech would hardly change protection already provided by Smith and Lukumi.
Speech Clause doctrine deals with conduct regulations that incidentally burden speech and expression in much the same way Smith and Lukumi deal with incidental burdens on religious exercise. The leading case is United States v. O’Brien (1968). A young man had burned his draft registration card on the steps of a federal courthouse to protest the Vietnam War, which was fought primarily with military draftees; this draft-card burning, though not literally “speech,” was unquestionably expressive conduct protected by the Speech Clause: “Congress shall make no law . . . abridging the freedom of speech.” Nevertheless, he was convicted of violating a federal law that prohibited the destruction of draft cards. The Court held that laws that incidentally burden one’s freedom of expression are constitutional if they further an “important or substantial government interest” that is “unrelated to the suppression of free expression” and is “no greater than is essential to the furtherance of that interest.” O’Brien at 377.
“Balancing at the Margin”
The Court routinely applies O’Brien to invalidate regulations when they target expressive conduct, just as it routinely invalidates regulations that target religious practices under the Free Exercise Clause and news reporting and publishing under the Press Clause; such laws are aimed at suppressing expressive conduct because of its content or viewpoint, which the Speech Clause forbids. But the Court rarely invalidates laws that impose merely incidental burdens on expressive conduct; in the half-century or so since O’Brien, the Court has upheld laws that only burden expressive conduct incidentally in all but two or three cases. See, e.g., NAACP v. Claiborne Hardware Co. (1982) (applying O’Brien to invalidate law prohibiting secondary boycotts as applied to civil rights activists); see also Police Dep’t v. Mosley (1972) (same as alternate holding invalidating law prohibiting labor picketing on or near the premises of a school).
The principal reason stems from the deferential manner in which the Court applies the “less restrictive alternative” prong of O’Brien, which requires that incidental burdens on expressive conduct be “no greater than is essential” to furthering legitimate interests the law is designed to protect. In classic strict-scrutiny analysis, a least-restrictive alternative requirement requires government to show that alternatives would substantially undermine the government’s protection of its compelling interest, rather than making protection less effective to some slight degree. In Wisconsin v. Yoder (1972), for example, the Court invalidated a compulsory school attendance law as applied to Amish communities because enforcing the law would have existentially threatened such communities, while the informal training they gave their young people was an adequate, if imperfect, substitute for the formal schooling required by the state. The Court, in other words, balanced the extreme burden compulsory schooling imposed on Amish religious practice against a slight inefficiency in achieving the state’s compelling interests in training an educated and self-sufficient citizenry.
Under strict scrutiny, an alternative regulation that intrudes substantially less on a fundamental right is a “less restrictive alternative” even though it is marginally less effective in protecting the government’s legitimate interests. In doctrinal terms, this version of a less restrictive alternative requires a court to “balance at the margin”—to demonstrate that there is no nearly-as-effective alternative or, put another way, that the state’s interest in avoiding a small inefficiency in carrying out its regulatory purpose is more important than dramatically reducing the burden on a fundamental right . (Europeans will recognize balancing at the margin as a close relative of the proportionality analysis frequently deployed by the European Court of Human Rights.)
The U.S. Supreme Court almost never balances at the margin when it reviews incidental burdens on expressive conduct. Under O’Brien, the government need only show that there exists no equally-as-effective alternative to the burdensome regulation, as opposed to no nearly-as-effective alternative. Requiring draft-aged men to carry their registration cards in person enables quicker and more efficient identification of their draft status and, particularly, identification of those who are evading military service. But even in the pre-digital era, it was doubtful that this law made it any easier to catch draft dodgers; draft registration records were held in a central location, and any person’s draft status could be confirmed quickly and easily. Indeed, the military itself used these centrally stored records, and not personally issued draft registration cards, to administer the draft. Nevertheless, because it was conceivable that, in a few situations, verifying draft status via centralized records might not be equally as effective as immediate inspection of a draft card, but only nearly as effective, the Court held that the prohibition on destruction of personally issued draft cards satisfied the alternatives prong of the O’Brien test, and thus upheld the plaintiff’s criminal conviction.
An O’Brien-style test for incidental burdens on religious exercise, therefore, will not provide religious free exercise with any greater protection against incidental burdens than is already provided by Smith and Lukumi. Religious exemptions from generally applicable laws nearly always degrade the efficiency with which government pursues its interests; as a consequence, a court would rarely grant a religious exemption under an O’Brien-style doctrinal regime unless it balanced burdens on religious exercise against the inefficiencies generated by exemption. Put another way, a doctrinal regime that presumptively entitled believers to exemptions from incidental burdens on religious exercise would grant them more protection than is now afforded to expressive conduct.
Targeting and Discretion
Speech Clause doctrine is identical to current Free Exercise doctrine in other ways. Laws that regulate speech on the basis of its content or viewpoint—that discriminate against certain kinds of speech or speech that advocates a particular point of view—are subject to strict scrutiny; under Smith and Lukumi, laws that target religious exercise with special burdens not imposed on comparable secular activity are likewise subject to strict scrutiny. Under the Speech Clause, licensing and other regulatory schemes that grant government officials discretion whether to permit speech ex ante are presumptively unconstitutional unless the discretion is limited by clear substantive standards; under Smith and Lukumi, regulatory schemes that give officials open-ended discretion whether to grant a religious exemption are likewise subject to strict scrutiny.
Doctrinal Anomalies (But Not the One Barrett Identified)
Both Speech Clause and Religion Clause doctrines incorporate doctrinal “carve-outs” that afford special protection from incidental burdens that would otherwise be permissible under the general doctrines governing the Clauses. Because of their special importance to democratic governance and the free marketplace of ideas, those who gather and publish news enjoy special protection from liability under generally applicable defamation laws; government officials and public figures must prove that a defamation defendant knew or was reckless with respect to the possibility that its reporting was untrue. N.Y. Times v. Sullivan (1964). Analogously, the “ministerial exception” exempts religious congregations from liability under employment anti-discrimination laws when they hire or fire a minister, rabbi, priest, imam, or other congregational leader, because complete freedom to designate one’s religious leader is at the core of religious free exercise. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC (2014).
The doctrinal analogies are not complete, to be sure. The ecclesiastical abstention doctrine under the Establishment Clause deprives courts of jurisdiction over cases whose adjudication would require the resolution of contested issues of religious doctrine. E.g., Watson v. Jones (1871). No comparable doctrine exists under the Speech Clause. Speech Clause doctrine incorporates reduced scrutiny for certain kinds of low-value expression, such as commercial speech, and deprives a very few classes of speech, such as incitement and child pornography, of any First Amendment protection at all because of their danger to society and scant contribution to the exchange of ideas. By contrast, the Court has construed the Religion Clauses affirmatively to prohibit government from regulating religions or rituals based upon an assessment of their reasonableness or social value or lack thereof. E.g., Thomas v. Review Bd. (1982). Speech Clause doctrine permits the regulation of speech as speech; the Court has occasionally permitted purposeful regulation of speech in service to overriding government goals like promoting a broad marketplace of ideas or protecting government operations. The promotion of religion as religion, by contrast, is categorically prohibited by Establishment Clause doctrine.
Despite her misplaced impression that Smith and Lukumi provide less protection of the free exercise of religion than is afforded other First Amendment rights, Justice Barrett is properly wary of exchanging Smith straight up for strict scrutiny of incidental burdens on religion: “I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime . . . .” If Smith were abandoned, she wonders, “What forms of scrutiny should apply” to incidental burdens on religious exercise? The doctrinal structure of the First Amendment attests that strict scrutiny of incidental burdens on religious exercise—“the most demanding test known to constitutional law”—is neither obvious nor desirable.
 See Towards a Defensible Free Exercise Clause (2000); The Normalized Free Exercise Clause: Three Abnormalities (2000).
 See generally Scott H. Bice, Rationality Analysis in Constitutional Law 37–39 (1980).