108 Iowa L. Rev. 2075 (2023)
Abstract
Free exercise now finds itself at a crossroads. In 1990, in Employment Division v. Smith, the Supreme Court dramatically narrowed the Free Exercise Clause, holding that religious believers generally had no constitutional rights to religious exemptions from neutral and generally applicable laws. Smith was always controversial. Yet with each passing year, it seemed more and more like Smith had become a fixed part of the jurisprudential landscape.
But this turns out not to have been the case. Smith now finds itself on the ropes. Two terms ago, in Fulton v. Philadelphia, several Justices called for Smith to be overruled. And a bipartisan coalition of three other Justices—Justice Breyer, Justice Kavanaugh, and Justice Barrett—wrote a striking concurrence, essentially asking for help. That concurrence seemed to reject Smith’s foundations, but it also asked hard questions about the viability of any other approach.
This short symposium piece considers the questions posed by Justice Barrett’s concurrence in Fulton. If the Court decides to go back on Smith, it faces an array of complicated choices about how to structure free exercise doctrine. This piece offers some thoughts about how the Court should think about these choices.