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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Interview: Brett G. Scharffs on Teaching Law and Religion Globally

Brett G. Scharffs is Rex E. Lee Chair and Professor of Law at Brigham Young University’s J. Reuben Clark Law School and Director of the Law School’s International Center for Law and Religion Studies. He received his JD from Yale Law School, where he was Senior Editor of the Yale Law Journal. He has previously taught at Yale University and the George Washington University Law School. Scharffs has been a visiting professor at Central European University in Budapest, University of Adelaide School of Law in Australia, and Doshisha University in Kyoto. He has helped organize a Certificate Training Program on Religion and the Rule of Law in Beijing in partnership with Peking University Law School’s Center for Administrative and Constitutional Law. He also co-organizes similar programs in Vietnam, Myanmar, and Uzbekistan. He has been working to develop a masters-level course on Shari’a and Human Rights with two universities in Indonesia. Scharffs has written more than 100 articles and book chapters and has made more than 300 scholarly presentations in 30 countries. His field-creating casebook, Law and Religion: National, International, and Comparative Perspectives (co-authored with W. Cole Durham, Jr.) was published by Wolters Kluwer in 2009, with an extensively revised and updated second edition appearing in January 2019. Scharffs was interviewed by Dmytro Vovk


What is the place of law and religion courses in legal education?

Traditionally, U.S. law schools have treated law and religion as almost exclusively a course focused on the U.S. experience. There might be a little bit of history, but it focuses almost exclusively on the First Amendment and perhaps a few statutes, such as the Religious Freedom Restoration Act. In our teaching, we had been teaching international students quite frequently, including at Central European University. And what we wanted to do is teach a course that was fundamentally different. It would have a U.S. component, but that would only be one leg of a three-legged stool; the other two components would be international law and comparative law. So when we teach, we do include U.S. materials because they’re important, and they’re illustrative. We focus largely on the Free Exercise Clause and the Establishment Clause. The international human rights component focuses primarily on international human rights instruments, beginning with the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and then a lot of cases that have been decided by courts, principally the European Court on Human Rights, interpreting those treaties. For the comparative law piece, we focus on interesting counterparts to the U.S. and international materials, often cases dealing with the same subject matter. In our casebook, we have examples from more than 20 countries. These tend also to be based upon national constitutions and constitutional interpretations by courts, but also statutes and administrative practice. The centerpiece of our approach is believing that we all face a set of common problems. And we can learn to find better solutions in our own homes by being aware of the successes, the contrast, and the failures in other places and other legal regimes.


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The Use of Religious Arguments for the Justification of the Russian Invasion of Ukraine

Kristina Stoeckl is Professor of Sociology of Religion at the University of Innsbruck (Austria). Her forthcoming book, co-authored with Dmitry Uzlaner, is titled The Moralist International. Russia in the Global Culture Wars (Fordham University Press 2022).

The Russian war against Ukraine has put a religion at the center of public perception and journalistic reporting that has so far remained largely under the radar of broad public attention: Orthodox Christianity and, more specifically, the Russian Orthodox Church and the Orthodox churches in Ukraine. Nearly every news outlet these days has shown at some point symbolic images of the Patriarch of Moscow Kirill and Vladimir Putin in a gilded church setting. And indeed, this war and the justifications given by the Russian president and the head of the church for the military aggression have made clear how closely the Orthodox Church and the state are linked in Russia. On the other hand, the critical reactions of the Orthodox churches in Ukraine and the Orthodox churches worldwide have also demonstrated that Orthodoxy is not always guided by a “symphonic” closeness of church and autocratic state but that there are also Orthodox voices that speak for democracy, peace, and liberal values.

In this blog post, I focus on the Russian church-state side of this story. For the critical reactions of global Orthodoxy to the Moscow Patriarchate, I refer the reader to the blog Public Orthodoxy of the Orthodox Christian Studies Center at Fordham University and, in particular, to the recent post “A Declaration on the ‘Russian World’ (Russkii Mir) Teaching.”


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