Recently published, in the Harvard Journal of Law and Public Policy, Branton J. Nestor: The Original Meaning and Significance of Early State Provisos to the Free Exercise of Religion (42 Harv. J. L. & P. Pol'y 971 (2019)). Here is the introduction (footnotes omitted):
The Supreme Court held in Employment Division v. Smith that the Free Exercise Clause does not generally protect religiously motivated conduct from neutral laws of general applicability. But the Supreme Court has never determined whether this holding reflects the original meaning of the Free Exercise Clause. Justice Scalia’s City of Boerne concurrence provides the strongest argument issued by any member of the Court defending Smith on historical grounds. He defends Smith’s historical foundation by relying in part upon the provisos to the free exercise guarantees found in the early state constitutions. These provisos withheld protection from, inter alia, conduct that violated the “public peace” or “safety” of the state. Justice Scalia’s argument supporting Smith on the basis of these state provisos is twofold. First, he argues that these provisos generally withheld protection from conduct that violated any neutral, generally applicable law that a legislature might enact. That is because any violation of law would necessarily be understood to constitute a violation of the “peace” or “safety” of the state. Second, he concludes that this limited understanding of the free exercise of religion was the one that the federal Free Exercise Clause adopted. In short, Justice Scalia concludes the state free exercise provisos suggest that Smith’s rule is on firm historical footing.
This Note offers a different conclusion. It focuses on the provisos to the state free exercise guarantees to advance a twostep argument against Justice Scalia’s historical argument for Smith. First, the state free exercise provisos did not withhold protection from all religiously motivated conduct that violated any neutral, generally applicable law that a legislature might enact. Instead, these state provisos represented specifically enumerated, compelling state interests that were narrow exceptions to an otherwise broad free exercise right. And second, the Free Exercise Clause—which lacks any express proviso—should be read to protect religious exercise at least as broadly as the proviso-laden state constitutions. …
This will be a very important discussion if there is interest on the Court in revisiting Justice Scalia's opinion in Employment Division v. Smith (as I think there may be).
NOT RELATED (but in the same issue): James C. Phillips, Benjamin Lee & Jacob Crump, Corpus Linguistics and “Officers of the United States” (42 Harv. J. L. & P. Pol'y 871 (2019)), previously noted here.)
Posted at 6:51 AM