Stephanie H. Barclay (Notre Dame Law School) has posted Replacing Smith (Yale Law Journal, 2023) (37 pages) on SSRN. Here is the abstract:
As the Supreme Court has sought to ground more of its constitutional jurisprudence in original understanding, it has signaled an interest in re-visiting Employment Division v. Smith, which overruled the use of strict scruti-ny for religious burdens caused by neutral and generally applicable laws. But what replacement doctrinal test would both be workable for courts to administer and consistent with constitutional text and Founding-era understandings? Some scholars and jurists have juxtaposed the traditional scrutiny test against a type of historically and textually grounded approach. But this Essay contends that such a juxtaposition creates a false dichotomy. While certain facets of Free Exercise rights warrant categorical or absolute protection (including those aspects that overlap with antiestablishment interests), the full scope of the Free Exercise right as originally understood is also consistent with presumptive protection that can be reflected through the use of judicial scrutiny. And that type of judicial scrutiny need not involve judicial balancing. To that end, this Essay defends a historically-grounded iteration of strict scrutiny that operates as an exclusionary norm rather than a balancing test. This Essay contends that such an approach can claim the benefits of both workability and consistency with original meaning.
(Via Larry Solum at Legal Theory Blog, where it is "Highly recommended" and "Download of the week.")
Posted at 6:28 AM