A Second-Class First Amendment Right? Text, Structure, and Free Exercise After Fulton

Abstract

When the Supreme Court granted certiorari in Fulton v. City of Philadelphia in February 2020, many hoped the Court would overrule Employment Division v. Smith and restore strict scrutiny for free exercise claims. Although Fulton stopped short of overruling Smith, it indicates that Smith’s days are numbered. The question is no longer whether Smith will go. It is, instead: What should replace Smith? This Article addresses that question, picking up where Fulton leaves off.

This Article proceeds in four parts. Part I describes Smith, analyzing Justice Scalia’s concern with judicial discretion and the reasons he was reluctant to embrace the Sherbert v. Verner regime. It also examines the Court’s application of Smith and connects those cases to the era of strict scrutiny that preceded Smith.

Part II examines the current state of free exercise jurisprudence, with a particular focus on the meaning of Fulton and the broader context of the pandemic-related cases decided around the same time. Although Fulton stopped short of overruling Smith, the combined effect of Fulton and the pandemic-closure cases diminished Smith, making it less of a shield for lawmakers and more of a sword for religious Americans. Fulton expanded Smith to compel strict scrutiny whenever there is a “formal mechanism for granting exceptions.” But why stop with formal mechanisms when informal mechanisms are ubiquitous?

Fulton confirms that at least five Justices stand ready to overrule Smith. But two of those five will not overrule Smith until they better understand what should replace it. Those Justices (Barrett and Kavanaugh) are skeptical about “swapping” Smith’s rule for Sherbert’s “equally categorical strict scrutiny regime.” They suggest that the historical record is “more silent than supportive” on whether Smith should be overruled and that the “textual and structural arguments against Smith are more compelling.” But the concurrence of those Justices is short and doesn’t fully explain their thinking, leaving many questions unanswered.

Part III examines the text and structure of the First Amendment to develop insights regarding a post-Smith understanding of the Free Exercise Clause. Three elements of the amendment’s text—its common subject (Congress); an understanding of its participles (respecting, prohibiting, abridging) informed by history; and the use of “free” and “freedom” to describe press, speech, and religious exercise—suggest robust and equivalent protection. The amendment’s structure, “guarding, in the same sentence, and under the same words, the freedom of religion, of speech, and of the press,” bolsters the argument for parity. So too does the interconnectedness of the rights the First Amendment protects.

And finally, in Part IV, we build on the textual and structural analysis, guided by the pragmatic concerns of Justices Scalia, Barrett, Kavanaugh, and others to offer suggestions for approaching free exercise claims in a post-Smith era. Free religious exercise is a fundamental right, and encroachments on fundamental rights should trigger strict scrutiny. The challenge lies in defining both the scope of the religious conduct protected by the First Amendment and the burden necessary to trigger strict scrutiny.

Smith’s newfound appeal to religious liberty advocates may prompt them to reconsider their position that Smith should be overruled. But that doesn’t change our view. The “new” Smith still doesn’t fit comfortably with other First Amendment rights. And it doesn’t address the elephant in the room: How should courts deal with neutral and generally applicable laws that burden religious exercise? While Smith focuses on the nature of the challenged law, we argue that Smith’s replacement should focus on the conduct at issue and be informed by the history and tradition of regulating that conduct. Assessing free exercise claims through the lens of history and tradition would create greater consistency with how state action is assessed under the Establishment Clause.

To avoid the fate of Sherbert, courts also must find ways to assess the claim and the relationship between the challenged law and the burden on religious practice. We suggest that pleading standards that emerged two decades after Smith might help cull implausible claims before the application of strict scrutiny.

The emotionally, culturally, and politically fraught context in which many of today’s headline-making religious liberty disputes arise will place immense pressure on whatever free-exercise doctrine comes next. A durable doctrine must be grounded in text and structure to withstand modern pressures. And it should place free exercise on par with the rest of the First Amendment so that it’s no longer a second-class First Amendment right.

Keywords: Fulton, Smith, First Amendment, Free Exercise, Religious Liberty, Barrett