How to Overturn Employment Division v. Smith: A Historical Approach
49 Pages Posted: 16 Jul 2020
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
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