•  
  •  
 

Florida Law Review

Abstract

Some members of the Roberts Court have signaled their willingness to reverse Employment Division v. Smith, a nearly thirty-five year old controversial but landmark free exercise ruling. Scholars and judges have debated what exactly should replace Smith’s test for religious exemptions, which applies strict scrutiny only to laws that target religion for unfair discrimination. More than one Justice on the Court has shown openness to a new strict scrutiny regime. Such a regime might apply strict scrutiny more widely to any substantial burdens on free exercise (as the Court did prior to Smith in cases such as Sherbert v. Verner and Wisconsin v. Yoder). But any effort to defend or spell out this kind of proposal must rebut a growing skepticism toward the Court and in legal scholarship about tiers of scrutiny and judicial balancing tests. This Article assembles and clarifies the two chief objections to tiers of scrutiny: their incompatibility with original meaning and their subjectivity for judges. It then seeks to redeem strict scrutiny as a mode of analysis for free exercise cases, and potentially for interpreting other civil liberties too. First, it shows that both objections apply equally to a rising alternative to strict scrutiny in the Roberts Court’s jurisprudence, namely a “history and tradition” or historical analog approach. Second, this Article defends a strict scrutiny regime that could replace Smith by assembling features of the Court’s current strict scrutiny analysis under statutory exemption law. Over time, these features have made strict scrutiny far more resilient against problems of illegitimacy or subjectivity than critics now suggest. Such analysis can incorporate a limited and tailored role for history and tradition. It remains the most promising and attractive option not only for replacing Smith, but perhaps also for interpreting several other constitutional rights.

Download

Share

COinS