Download this Paper Open PDF in Browser

Employment Division v. Smith at the Supreme Court: The Justices, the Litigants, and the Doctrinal Discourse

30 Pages Posted: 13 May 2011 Last revised: 1 Jun 2011

Marci A. Hamilton

Cardozo Law School

Date Written: May 2011

Abstract

Since it was decided twenty years ago, many commentators, both scholarly and otherwise, have characterized Employment Division v. Smith as a dramatic, unjustified departure from previous free exercise cases. This interpretation of the case is so prevalent that it is treated by many within and outside the field as obvious truth. The oft-stated premise is that Smith was on all fours with previous, obviously controlling case law, which mandated that the plaintiffs should have won. This reading treats a very small number of cases as determinative of free exercise doctrine, ignores the facts in Smith that distinguished it from those earlier cases, and also suffers from a failure to take into account how the case was treated at the Supreme Court by the parties and the Justices.

Keywords: Free Exercise, First Amendment, Law & Religion, RFRA, Belief, Conduct, Conference Notes, Jurisprudence, Tiers of Review

Suggested Citation

Hamilton, Marci A., Employment Division v. Smith at the Supreme Court: The Justices, the Litigants, and the Doctrinal Discourse (May 2011). Cardozo Law Review, Vol. 32, No. 5, 2011; Cardozo Legal Studies Research Paper No. 337. Available at SSRN: https://ssrn.com/abstract=1839963

Marci A. Hamilton (Contact Author)

Cardozo Law School ( email )

55 Fifth Ave.
New York, NY 10003
United States
212-790-0215 (Phone)
212-790-0205 (Fax)

Paper statistics

Downloads
197
Rank
130,035
Abstract Views
1,566