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

23 Pages Posted: 7 Apr 2011  

Richard Schragger

University of Virginia School of Law

Date Written: April 5, 2011

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.

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

Suggested Citation

Schragger, Richard, The Politics of Free Exercise After Employment Division v. Smith: Same-Sex Marriage, the 'War on Terror,' and Religious Freedom (April 5, 2011). Available at SSRN: https://ssrn.com/abstract=1803571 or http://dx.doi.org/10.2139/ssrn.1803571

Richard Schragger (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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