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.