The Politics of Free Exercise After Employment Division v. Smith: Same-Sex Marriage, the 'War on Terror,' and Religious Freedom

Abstract:     
This Essay, written for a symposium commemorating the twentieth anniversary of Employment Division v. Smith, examines the politics of free exercise as it has changed since Smith was decided. It focuses on two historical developments that have and will continue to shape the doctrine of free exercise going forward. The first development is the gay and lesbian civil rights movement and its pursuit of marriage equality in the courts. The second development is the "war on terror" that followed the attacks of 9/11 and the nation’s subsequent cultural and political response to fundamentalist Islam. This Essay describes how these historical developments are putting doctrinal and legislative pressure on the post-Smith free exercise equilibrium. The Essay also speculates about the continuing political and legal viability of Smith in light of these pressures.

Number of Pages in PDF File: 23

Keywords: Free Exercise Clause, religion, Same-sex marriage, war on terror, Smith, RFRA, RLUIPA, Supreme Court

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