How to Overturn Employment Division v. Smith: A Historical Approach

49 Pages Posted: 16 Jul 2020

See all articles by Ian Huyett

Ian Huyett

Washington and Lee University

Date Written: 2019


Over the last decade, justices on both sides of the Roberts Court have demonstrated a growing willingness to give the Free Exercise Clause substantive power: a trend that stands in stark contrast with the Rehnquist Court’s decision in Employment Division v. Smith. The Court’s references to Smith have also become visibly — and fittingly — awkward and halting. In this article, I argue that the time has come to push for an explicit reversal of Smith, and that such a decision would not only be joined by Chief Justice Roberts, but likely by Justice Kagan as well. Exploring the history of the Free Exercise Clause, I argue that Smith contradicted the Clause’s original intent, and that the nineteenth-century decisions on which Smith relied were little more than brazen codifications of anti-Mormon bigotry. I conclude that Justice Scalia’s majority opinion in Smith fails every metric of sound jurisprudence, and that a bipartisan coalition of justices can be persuaded to discard it as an aberration.

Keywords: Employment Division, Smith, Roberts, Scalia, Kagan, Reynolds, Murdock, Sherbert, Mormon, Mormonism, LDS, Jefferson, Madison, Locke, First Amendment, Free Exercise, Religion, Religious, Liberty

Suggested Citation

Huyett, Ian, How to Overturn Employment Division v. Smith: A Historical Approach (2019). Regent University Law Review, Vol. 32, 2020, Available at SSRN:

Ian Huyett (Contact Author)

Washington and Lee University ( email )

204 W Washington St
Lexington, VA 24450
United States

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