15 Pages Posted: 22 May 2011
Date Written: May 17, 2011
Employment Division v. Smith controversially held that general laws that were neutral toward religion would no longer be presumptively invalid, regardless of how much they incidentally burdened religious practices. That decision sparked a debate that continues today, twenty years later. This symposium Essay explores the argument that subsequent courts have in fact been less constrained by the principal rule of Smith than advocates on both sides of the controversy usually assume. Lower courts administering real world disputes often find they have all the room they need to grant relief from general laws, given exceptions written into the decision itself and other mechanisms for circumventing its main rule. While this brief piece does not attempt to prove the empirical claim that Smith has had a limited real-world impact, it gives reasons to think that it might be accurate. Moreover, it tests a similar argument with respect to scholarship, suggesting that even theorists who are sympathetic to Smith nevertheless are more willing to agree to exemptions in particular scenarios than is commonly realized, although important differences of degree and kind still separate them from opponents of the decision and from each other. The Conclusion offers one reason to celebrate this Essay’s depiction of how Smith actually operates, assuming it is correct: Raising awareness of its flexibility in the real world could lower the stakes of the ongoing national conflict over the proper place of religion in American public life.
Keywords: Free Exercise, Religious Freedom, First Amendment, Employment Division v. Smith
Suggested Citation: Suggested Citation
Tebbe, Nelson, Smith in Theory and Practice (May 17, 2011). Cardozo Law Review, Vol. 32, No. 2055, 2011; Brooklyn Law School, Legal Studies Paper No. 233. Available at SSRN: https://ssrn.com/abstract=1844844