Protecting Free Exercise Under Smith and After Smith

Abstract

Fulton v. City of Philadelphia is an important win for religious liberty. The Supreme Court protected a Catholic agency’s ability to continue providing foster-care services, holding that Philadelphia’s nondiscrimination policy failed Employment Division v. Smith’s requirement that a law burdening religion be generally applicable. The majority opinion avoided deciding the broader question whether the unprotective half of Smith should be overruled, so that government would have to provide strong justification for substantially burdening religion even through a generally applicable, formally religion-neutral law. Justice Barrett's concurrence suggested that Smith was mistaken but indicated reluctance to overrule it without knowing what would replace it.

This article first briefly examines free exercise under Smith, in the light of Fulton, and briefly revisits the arguments for overruling Smith’s unprotective half. But we focus on describing what approach should replace Smith, and responding to the questions that Justice Barrett raised. We argue for a flexible version of strict scrutiny, and for at least serious intermediate scrutiny. Free exercise review should typically be stronger than the weak intermediate scrutiny governing some free speech contexts: time, place, and manner restrictions and symbolic conduct. Those cases permit regulation when alternative means of communication are available, but when government substantially restricts a religious practice, frequently there are no “alternatives” to the practice. The logic and purposes of free exercise can generate a demanding but workable standard for challenges to generally applicable laws.

Keywords: Free exercise of religion, neutral and generally applicable laws, religious discrimination, religious exemptions, freedom of speech, freedom of association