Employment Division v. Smith at the Supreme Court: The Justices, the Litigants, and the Doctrinal Discourse

Abstract

Since it was decided twenty years ago, many commentators, both scholarly and otherwise, have characterized Employment Division v. Smith as a dramatic, unjustified departure from previous free exercise cases. This interpretation of the case is so prevalent that it is treated by many within and outside the field as obvious truth. The oft-stated premise is that Smith was on all fours with previous, obviously controlling case law, which mandated that the plaintiffs should have won. This reading treats a very small number of cases as determinative of free exercise doctrine, ignores the facts in Smith that distinguished it from those earlier cases, and also suffers from a failure to take into account how the case was treated at the Supreme Court by the parties and the Justices.

Keywords: Free Exercise, First Amendment, Law & Religion, RFRA, Belief, Conduct, Conference Notes, Jurisprudence, Tiers of Review