Donald L. Beschle (John Marshall Law School) has posted Does a Broad Free Exercise Right Require a Narrow Definition of “Religion”? The introduction follows.
In the 1990 case of Employment Division v. Smith, a sharply divided Supreme Court abandoned the routine application of strict scrutiny when considering Free Exercise Clause claims seeking exemption from generally applicable legal duties or prohibitions. The Court returned to an older view of the Free Exercise Clause as protecting believers only from government acts that were aimed specifically at beliefs, and that grew out of hostility to the religion rather than a desire to further legitimate secular goals.
Reaction to Smith was largely negative, and legislative and state court responses followed, seeking to restore strict scrutiny as the appropriate standard when a free exercise exemption was denied. Smith was seen as an unfortunate decision reflecting insensitivity to the significance of the free exercise right. This article explores the possibility that Smith may have been less the result of that insensitivity than it was a response to the vast expansion of the concept of religion in constitutional law since the Court’s first free exercise decisions employing strict scrutiny. This expansion made the application of strict scrutiny, at least as it is normally understood, wildly impractical.