Abstract

http://ssrn.com/abstract=2168995
 


 



The Good, the Bad, and the Ugly of Employment Division v. Smith for Family Law


James G. Dwyer


William & Mary Law School

2011

Cardozo Law Review, Vol. 32, No. 5, p.178, 2011
William & Mary Law School Research Paper No. 09-231

Abstract:     
The central holding of Employment Division v. Smith, "that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability,” is likely more agreeable to family law scholars than to First Amendment scholars. This is so because First Amendment scholars mostly worry about the liberty of the autonomous individual vis-a-vis the state in the public sphere, whereas family law scholars mostly worry about the vulnerability of dependent persons to abuse by private actors in the home, and therefore generally support extension of state protective authority into private life, where it is especially likely to conflict with religion. This Article explains, however, how two aspects of the Smith opinion, both of which the Court stated in dictum, threatened to undermine this holding in the family law realm and, to a large degree, have done so, to the detriment of children in particular.

Number of Pages in PDF File: 11

Keywords: First Amendment, religion, free exercise, child rearing, hybrid rights

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Date posted: October 31, 2012 ; Last revised: May 28, 2014

Suggested Citation

Dwyer, James G., The Good, the Bad, and the Ugly of Employment Division v. Smith for Family Law (2011). Cardozo Law Review, Vol. 32, No. 5, p.178, 2011; William & Mary Law School Research Paper No. 09-231. Available at SSRN: http://ssrn.com/abstract=2168995

Contact Information

James Gerard Dwyer (Contact Author)
William & Mary Law School ( email )
South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
HOME PAGE: http://law2.wm.edu/faculty/bios/fulltime/dwyer-648.php
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