The Supreme Court’s decision to revisit but not fully overturn Employment Division v. Smith continues to be a point of contention within legal circles. The April 20 announcement that the Court will hear arguments in St. Mary Catholic Parish v. Roy without reopening the Smith debate was a familiar occurrence, reminiscent of the Court’s approach in 303 Creative LLC v. Elenis. Both cases, rooted in free exercise and free speech challenges, show the Court sidestepping direct confrontation with the precedent set by Smith.
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The Background of Smith
The case stems from the late 1980s when Alfred Smith and Galen Black were denied unemployment benefits after using peyote in religious ceremonies. Despite Oregon courts siding with them, the Supreme Court’s ruling by Justice Antonin Scalia established that the First Amendment does not protect against “neutral, generally applicable law[s],” shifting away from a previous balancing test that required a compelling governmental interest for upholding challenged laws. -
Reaction and Legislative Developments
The decision sparked significant backlash, leading to the creation of the Religious Freedom Restoration Act (RFRA) in 1993, which reinstated the compelling interest test at the federal level. Yet, City of Boerne v. Flores in 1997 limited its application to federal actions, allowing the Smith standard to persist at the state level unless a state-specific RFRA exists.
Recent Developments
While RFRA continues to be a formidable tool for religious rights in federal matters, calls to overturn Smith remain. The Court’s conservative majority has narrowed what constitutes “neutral and generally applicable,” as seen in COVID-19 rulings and Fulton v. City of Philadelphia, yet hesitates to fully dismantle Smith.
Justices Barrett and Kavanaugh have expressed reservations about Smith but see challenges in formulating an adequate replacement standard that doesn’t result in a rigid scrutiny regime. Meanwhile, Justices Alito, Thomas, and Gorsuch openly regard Smith as detrimental to religious freedoms and seek its reevaluation.
The Court may be waiting for a case that starkly tests Smith’s applications, or for legislative changes to RFRA that might prompt a reexamination. Until such conditions arise, Smith‘s status remains in legal limbo, its potential overthrow postponed, as indicated in a SCOTUSblog analysis.