Kennedy v. Bremerton School District: Gedicks’s Comment

https://youtu.be/nd3b8O6jsuA On 27 June 2022, the U.S. Supreme Court ruled that a former high school football coach had a right to pray on the 50-yard line at the conclusion of a game. BYU Law Professor Frederick…

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Protecting Religious Free Exercise Like Other First Amendment Rights: A Response to Justice Barrett

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.

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The U.S. Supreme Court and Pandemic Restrictions on Religious Worship

Frederick Mark Gedicks is Guy Anderson Chair and Professor of Law in the J. Reuben Clark Law School at Brigham Young University

The current pandemic has presented challenges to normal life in the United States and elsewhere, including to the free exercise of religion. The U.S. Supreme Court has weighed in several times on COVID-related free exercise claims; though these are summary dispositions, they illuminate a doctrinal fault line that is likely to emerge in Fulton v. City of Philadelphia (3rdCir. 2019), a free-exercise case currently pending before the Court.

The Supreme Court’s Jurisprudence on Pandemic Restrictions

Employment Division v. Smith (1990) famously held that the First  Amendment’s guarantee of the free exercise of religion does not include the right of believers to be excused from complying with generally applicable laws that incidentally burden their religious beliefs or practices. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) clarified that Smith does not apply to laws which target religion with burdens from which comparable secular activities are relieved. Together, Smith and Lukumi transformed the free exercise of religion in the U.S. from a liberty to an equality right more consistent with the rule of law: believers are to be treated no better than other people, but also no worse.

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