Frederick Mark Gedicks (Brigham Young University – J. Reuben Clark Law School) has posted The Myth of Second-Class Free Exercise (Villanova Law Review, Vol. 72, 2025) (48 pages) on SSRN. Here is the abstract:
Employment Division v. Smith (1990) ended nearly three decades during which the Court purported to apply strict scrutiny to incidental burdens on religion. This period departed from nearly a century during which believers held no special right to disobey laws that bind everyone else, lest each believer become "a law unto himself."
Nevertheless, the belief persists that Smith demoted free exercise to subordinate status. "It is difficult to see," Justice Barrett has observed, "why the Free Exercise Clause–lone among First Amendment Freedoms–offers nothing more than protection from discrimination" (emphasis added). Scholars rushed to endorse Barrett's suggestion that Smith relegated free exercise to second-class status. These "Smith revisionists" variously invoke expressive conduct, compelled speech, expressive association, and content-neutral regulations to show that the Speech Clause protects speech against incidental burdens but not religion.
Like early critics of Smith, the revisionists are wrong. The freedoms of press, speech, and assembly also protect primarily against discrimination. Where they protect liberty interests, so does free exercise. In fact, religious exercise enjoys more liberty protection than other 1st Amendment rights through unique doctrines prohibiting government considerations of religious questions and mandating "most-favored nation" treatment of religion.
I demonstrate that the revisionist premise of second-class free exercise is incorrect as a matter of doctrinal fact. With the Court now poised to abandon Smith, it is crucial that debates about its merits rest on an accurate comparison of the doctrines of free exercise and other 1st Amendment rights. Whatever Smith's flaws, subordinating free exercise is not one of them.
Posted at 6:19 AM