Smith and Women's Equality
26 Pages Posted: 18 Dec 2010 Last revised: 9 May 2011
Date Written: December 16, 2010
This essay was part of a Cardozo symposium celebrating the twentieth anniversary of the landmark free exercise case, Employment Division v. Smith. I argue that full enforcement of Smith is essential to women’s equality. I explain that male-dominated religious communities have repeatedly opposed women’s rights by seeking not only to exempt themselves from the law of women’s equality but also to change the content of that law to undermine women’s rights. Although Smith has given women’s groups some victories over this anti-egalitarian trend, resistance to Smith and refusal to apply its holding have harmed women’s rights.
In Part I, I explain why Smith is necessary to support women’s equality in the family and reproductive rights. In Part II I argue that if Smith were taken seriously, the courts would not continue to dismiss sex discrimination lawsuits under the invented ministerial exemption and church autonomy theories of the First Amendment, and the legislatures would not persistently seek to undo Smith’s regime by exempting religious groups from the law.
Keywords: First Amendment, free exercise, women’s equality
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