Download This PaperFulton and the Future of Free Exercise
34 Pages Posted: 18 Feb 2021 Last revised: 7 Apr 2021
Date Written: August 19, 2020
Abstract
In October Term 2020, the Supreme Court will decide Fulton v. City of Philadelphia. Among other things, that case asks the Court to consider the question of whether to overrule Employment Division v. Smith and reconsider the meaning of the Free Exercise Clause.
Smith’s interpretation of the Free Exercise Clause rested primarily on normative, rather than textual or historical, grounds: The Court thought it would be better to leave religious accommodation to the political process rather than require judges to weigh state interests against burdens on religious practices. But was that true? Thirty years of experience suggests not.
Much has changed in the thirty years since Smith. American culture and politics have changed. Attitudes about religion have changed. Understandings about the individual rights secured by the Constitution have changed. The legal and political disputes over religious liberty have changed. And while there is now more agreement on the civic value of diversity and pluralism, there is less agreement on the civic value of religious liberty.
This article begins with a primer on Fulton, the Supreme Court’s Free Exercise Clause jurisprudence leading to Smith, Smith itself, and the legislative responses to it—all with an eye toward what has been learned since Smith and how that informs the question of whether Smith should be overruled. It next examines and responds to the arguments in favor of Smith and its legislative-accommodation approach. Then, it considers the historical justifications for the Free Exercise Clause and the religion clauses more broadly, again with an eye toward the contemporary debate over the Free Exercise Clause. The article concludes by discussing what all of that might mean for Fulton, the polarized context in which current free-exercise cases occur, and the protection of liberty in a pluralistic society.
Keywords: Free Exercise, Smith, Fulton, First Amendment
Suggested Citation: Suggested Citation
Bradley J Lingo (Contact Author)
Regent University School of Law ( email )
1000 Regent University Drive
Virginia Beach, VA 23464
United States
757-352-4337 (Phone)
HOME PAGE: http://https://www.regent.edu/school-of-law/faculty/j-d-bradley-j-lingo/
Michael Schietzelt
Regent University - School of Law ( email )
1000 Regent University Drive
Virginia Beach, VA 23464
United States