The Myth of Second-Class Free Exercise

Abstract

In 1990, Employment Division v. Smith ended nearly three decades during which the Court purported to apply strict scrutiny to incidental burdens on religion. This period departed from nearly a century during which believers held no special right to disobey laws that bind everyone else, lest each believer become "a law unto himself."

Nevertheless, the belief persists that Smith demoted free exercise to subordinate status compared to other First Amendment rights. Justice Barrett suggests that Smith's confinement of free exercise to protection against discrimination deprives it of more robust protections afforded other rights. In the academy,  critics variously invoke expressive conduct, compelled speech, expressive association, and content-neutral regulations to show that First Amendment doctrine protects speech against incidental burdens but not religion.

These critics are wrong. The freedoms of press, speech, and assembly also protect primarily against discrimination. Where they protect liberty interests, so does free exercise. In fact, religious exercise is constitutionally privileged compared to other First Amendment rights through unique doctrines barring government consideration of religious questions and mandating "most-favored nation" treatment of religion.

This Article demonstrates that the revisionist premise of second-class free exercise is incorrect as a matter of doctrinal fact. Current First Amendment doctrine affords free exercise far more protection than it grants to press, speech, and assembly. Those who claim otherwise are not seeking equality with other rights, but privilege for free exercise.