At Volokh Conspiracy, Josh Blackman: The Court Has No Interest In Overruling Smith. From the introduction:
[Last Monday] the Court granted cert in St. Mary Catholic Parish v. Roy. The petition presented three questions:
1. Whether proving a lack of general applicability under Employment Division v. Smith requires showing unfettered discretion or categorical exemptions for identical secular conduct.
2. Whether Carson v. Makin displaces the rule of Employment Division v. Smith only when the government explicitly excludes religious people and institutions.
3. Whether Employment Division v. Smith should be overruled.
The Court, however, only granted on Questions #1 and #2. This will likely be yet another repudiation of Colorado’s hostility to religious liberty. Has any other state lost so many cases in a single area of constitutional law?
Yet, the Court denied cert on the third question presented. This is the latest in a string of cert petitions that have asked the Court to overrule Smith. And in each case, the Court declines to go down that road.
It appears that Fulton was the closest we will get to overruling Smith. Justices Thomas, Alito, and Gorsuch were prepared to overrule Smith. But that only counts to three. …
Posted at 6:08 AM