Frederick Mark Gedicks,
Towards a Defensible Free Exercise Doctrine,
68 Geo. Wash. L. Rev.,
Available at: http://digitalcommons.law.byu.edu/faculty_scholarship/313
Employment Division v. Smith, exemptions, freedom of religion, free exercise clause, free exercise doctrine, religious liberty
Almost from the moment that the Supreme Court abandoned the religious exemption doctrine in Employment Division v. Smith, its defenders have worked to bring it back. More than a decade later, however, Smith remains well-entrenched; not only has the Court confirmed Smith's basic holding, but it also struck the Religious Freedom Restoration Act, Congress's first effort to restore the exemption doctrine, at least as it applied to the states.
Proponents of religious exemptions cannot ignore the hard truth that they can no longer be defended. During the nineteenth and early twentieth centuries, American society viewed the practice of religion-mostly Christian or "Judeo-Christian" religion-as an especially good activity entitled to special privileges and to be encouraged by government. This understanding of religious practices has been displaced by an understanding that has reduced religious practices to a personal preference that is to be neither encouraged nor discouraged by government. In terms of its social place and importance, contemporary belief enjoys no greater cultural status than a number of indisputably secular activities. In this cultural environment, it is difficult to justify giving religious practices special constitutional protection that is not afforded to morally serious and socially valuable secular activities.
In light of the new and diminished place of religion, religious practice should receive only the constitutional protection afforded to expression and association under the Speech and Equal Protection Clauses. Incidental restriction, time, place, and manner regulation, and prior restraint of religious activity should be handled doctrinally in the same way that such restrictions, regulations, and restraints of expression are dealt with by the Speech Clause. Likewise, burdens imposed on religious practices by underinclusive but nonsuspect classifications should be handled doctrinally in the same way that such burdens on fundamental rights are dealt with under the Equal Protection Clause. These constitutional analogues suggest a plausible, defensible, and meaningful doctrine that takes account of the place of religion in contemporary society.
68 Geo. Wash. L. Rev. 925