Previously posted on SSRN.

Abstract

How the Supreme Court ought to implement the Free Exercise
Clause has been one of the most controversial issues in U.S. rights discourse
of the past fifty years. In Fulton v. City of Philadelphia, a majority of the
justices expressed dissatisfaction with the standard articulated in
Employment Division v. Smith, but they could not agree on what ought to
replace it. This Essay argues that focusing on whether to overrule Smith is a
distraction from the sensitive task of implementing the Free Exercise Clause.
This is not because Smith was “right,” but because (1) the history and
tradition are both indeterminate about accommodations from generally
applicable laws, giving judges a measure of discretion about how to implement
the Clause; (2) Smith has always been only one component of a much larger
American legal regime with extraordinarily robust free exercise rights; and
(3) subsequent cases have rendered the Smith doctrine so malleable that it
is now arguably more protective of religious exercise than the pre-Smith regime
had ever been.

So the question is not whether to keep Smith but how the Court ought to
implement the Clause, consistent with the original understanding, tradition,
precedent, and the broader legal protections for religious exercise. This Essay
argues that the Court should announce constitutionally mandated
accommodations when there is reason to suspect that the political process that
would ordinarily have yielded a religious accommodation failed to do so
because of a political blind spot or bias. Applied delicately, with an eye toward
promoting the American tradition of political, rather than judicial,
accommodations, the “most-favored-right” doctrine, for all its conceptual faults,
can serve that purpose, especially when coupled with robust, context-specific
protections for discrete categories of religious exercise like speech, assembly,
association, and ministerial employment.

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