The Free Exercise Clause, Its Original Public Meaning, and the Reconsideration of Employment Division of Oregon v. Smith

19 Pages Posted: 21 Jul 2020

See all articles by Carl H. Esbeck

Carl H. Esbeck

University of Missouri School of Law

Date Written: July 21, 2020


In the October Term 2020, the Supreme Court of the United States will hear oral argument in Fulton v. City of Philadelphia, No. 19-123. The major question presented is the reconsideration of Employment Division of Oregon v. Smith, 494 U.S. 872 (1990). Smith held that the Free Exercise Clause did not provide a claim against generally applicable legislation, neutral as to religion, notwithstanding that there is a disparate impact on a religious practice of the claimant. This extended essay was filed as a brief amicus on behalf of the Petitioner in Fulton. It argues that Smith should be overruled because it is inconsistent with the original public meaning of the Free Exercise Clause of the First Amendment.

When interpreting the Free Exercise Clause, the Supreme Court should be guided by its original meaning. To ascertain the meaning of the text at the time when the clause was adopted requires knowledge of the context that gave rise to the words “make no law . . . prohibiting the free exercise [of religion].” The Court should consider deliberations in the First Federal Congress over the amendment process from June through September 1789. In turn, those deliberations are best understood in light of the immediately preceding controversy leading to promises of a bill of rights as a way of inducing states to ratify the 1787 Constitution. Federalists initially opposed a bill of rights, whereas such amendments found support with Antifederalists who worried about too much power vested in the new central government.

When debating ratification of the 1787 Constitution, seven of the thirteen states voted on recommending to the forthcoming Congress an amendment that would protect religious liberty. Like the text of the Free Exercise Clause, all seven draft amendments were without qualification. That both Federalists and Antifederalists were willing to limit unconditionally the federal government when it came to laws burdening religious liberty made sense all around. Federalists insisted that the new government contemplated by the Constitution was delegated no power to limit the exercise of religion. They saw the amendment as harmlessly denying of powers never delegated. In contrast, the Antifederalists wanted additional limitations on the federal government. In their view, such an amendment would help to ensure that any authority with respect to prohibiting religious exercise remained entirely in the hands of the states.

Going back to the onset of the Revolution, eleven of the thirteen states adopted constitutions of their own. In contrast with the Free Exercise Clause, the religious liberty provisions in these state constitutions were conditional on the rights-claimant not breaching the peace, engaging in licentious acts, and the like. Qualifying the religious-liberty right was in keeping with Lockean natural rights, and that was sensible because in the late eighteenth century it was at the level of the states where all of the interaction occurred between religious people and civil government. In contrast, for the Free Exercise Clause to completely disempower the newly formed national government when it came to prohibiting religious exercise aligns with the publicly stated positions of both Federalists and Antifederalists.

The proper interpretive principle for the Court is to give the same meaning to the Free Exercise Clause that was conveyed by the words of the First Congress and the ensuing ratifying states. In 1940, the Free Exercise Clause was incorporated through the Fourteenth Amendment, and the Court does not water down fundamental rights when applying them to state and local officials. As with other unqualified texts, such as “make no law . . . abridging the freedom of speech, or of the press,” out of necessity the judiciary has long applied strict scrutiny—the Court’s most stringent standard of review. That leaves a rigorous Free Exercise Clause restraint binding today on the City of Philadelphia in Fulton, one that is incompatible with Smith.

Keywords: Free exercise, religion, Oregon, Smith, Fulton, Philadelphia, 1787, 1789, Revolution, Congress, Antifederalists

Suggested Citation

Esbeck, Carl H., The Free Exercise Clause, Its Original Public Meaning, and the Reconsideration of Employment Division of Oregon v. Smith (July 21, 2020). University of Missouri School of Law Legal Studies Research Paper No. 2020-21, Available at SSRN:

Carl H. Esbeck (Contact Author)

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