The Good, the Bad, and the Ugly of Employment Division v. Smith for Family Law

Abstract

The central holding of Employment Division v. Smith, "that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability,” is likely more agreeable to family law scholars than to First Amendment scholars. This is so because First Amendment scholars mostly worry about the liberty of the autonomous individual vis-a-vis the state in the public sphere, whereas family law scholars mostly worry about the vulnerability of dependent persons to abuse by private actors in the home, and therefore generally support extension of state protective authority into private life, where it is especially likely to conflict with religion. This Article explains, however, how two aspects of the Smith opinion, both of which the Court stated in dictum, threatened to undermine this holding in the family law realm and, to a large degree, have done so, to the detriment of children in particular.

Keywords: First Amendment, religion, free exercise, child rearing, hybrid rights