Religious Liberty and Religious Discrimination: Where Is the Supreme Court Headed?

Abstract

The idea that the U.S. Supreme Court’s jurisprudence might take unique account of religious minorities has, by and large, come to pass. In recent years, the Court has repeatedly recast religion-clause cases as sounding in religious discrimination. This is far from surprising given the continued application of the Court’s 1990 decision, Employment Division v. Smith, which interpreted the Free Exercise Clause as only prohibiting laws that fail to be neutral and generally applicable with respect to religion. Put in the inverse, where laws abide by such non-discrimination standards—they satisfy the demands of neutrality and general applicability—then the Free Exercise Clause affords no protection. But in applying these twin standards of neutrality and general applicability in recent years, the Court has both bolstered and expanded the category of religious discrimination—a move that speaks to the concerns of religious minorities who often lack the political power to shield themselves from the inequalities that can persist in the political process. How will the prevailing politics in the early days of the Biden administration impact the Court’s free exercise doctrine? Is the Court willing to branch out beyond the confines of the religious discrimination paradigm and address head on culture-war dilemmas? The Court can broaden the umbrella of religious liberty protections significantly without expressly overruling Employment Division v. Smith or explicitly discarding the religious discrimination paradigm. Under such circumstances, one can see the political allure of continuing to adjudicate even the most challenging religious liberty cases without signaling a jurisprudential sea change. And with the specter of President’s Supreme Court Commission lurking, one can see why we are unlikely to see a constitutional revolution with respect to religious liberty under the Biden administration. The religious discrimination paradigm—and all its attendant flexibility—seem to do just fine.

Keywords: Religious Liberty, Religious Discrimination, United States Supreme Court, religious minority, free exercise, neutrality, Biden administration