Religious Freedom and its Enemies, or Why the Smith Decision may be a Greater Loss Now than it was Then
Steven Douglas Smith
University of San Diego School of Law
October 12, 2010
Cardozo Law Review, Forthcoming
San Diego Legal Studies Paper No. 10-037
Threats to religious freedom change over time. In the early modern period, the dominant threat was imposed religious orthodoxy. Although the First Amendment religion clauses were a good response to this threat, by the time they were adopted the threat had already receded, to be replaced by a different challenge that we might call democratic disregard. The Sherbert “compelling interest” test was a plausible response to that newer threat, except that by the time Sherbert was decided the problem of democratic disregard had likewise declined. Consequently, the doctrine had little occasion for application, and Smith’s rejection of Sherbert was no big deal at the time. Today, though, the most serious threat to religious freedom comes from the cultural and legal ascendency of secular egalitarianism – a development that in many ways parallels the classical phenomenon of imposed religious orthodoxy. The Sherbert doctrine, if it were still in force, might be of some help in protecting religious freedom against the demands of secular egalitarianism. Hence, Smith’s repudiation of Sherbert is a more serious loss now than it was at the time.
Number of Pages in PDF File: 34
Keywords: Freedom of Religion, Constitutional Law, First Amendment
JEL Classification: K10Accepted Paper Series
Date posted: October 13, 2010
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