When a 'Rule' Doesn't Rule: The Failure of the Oregon Employment Division v. Smith 'Hybrid Rights Exception'

Abstract

More than a decade has passed since the Supreme Court rearranged the landscape of free exercise jurisprudence in Employment Division v. Smith, and courts and scholars continue to wrestle with its meaning. This Article reviews one aspect of the Smith decision, the “hybrid rights exception,” which promised to ameliorate the decision’s harsher aspects.

The authors initially survey the Supreme Court free exercise case law that preceded Smith. Then, following a brief look at Smith itself and the language giving rise to the hybrid rights exception, the authors discuss the lack of success hybrid rights claims enjoyed in Smith’s wake. The authors briefly survey academic criticism of Smith, and consider as well whether the hybrid rights doctrine is an aberration in Justice Scalia’s well-developed judicial philosophy. Finally, the authors suggest reasons for the apparent lack of success constitutional litigators have had in employing the hybrid rights doctrine, and one possible reformulation of the doctrine that may facilitate its predictive value.

Keywords: free exercise, Employment Division v. Smith, hybrid rights exception