Wesley J. Campbell in the Stanford Law Review: A New Approach to Nineteenth-Century Religious Exemption Cases.
From the introduction:
In Employment Division v. Smith (1990), the Supreme Court held that the First Amendment does not afford individuals a right to receive exemptions from neutral and generally applicable laws that incidentally burden their exercise of religion. Although Justice Scalia wrote the majority opinion, the Court’s decision came without any discussion of the original meaning of the Free Exercise Clause. Seven years later, however, Justice O’Connor’s dissenting opinion in City of Boerne v. Flores attacked the Smith holding on originalist grounds, and Justice Scalia responded in kind. After engaging with various founding-era sources, Justice Scalia remarked that “the most telling point made by the dissent” was the lack of early state or federal cases in which the court granted a religious exemption to a neutral and generally applicable statute. Indeed, the dissent provided no account of early religious exemption cases and offered only silence in response to Justice Scalia’s critique of such an omission.
This Note disputes Justice Scalia’s claim that the dearth of successfully litigated nineteenth-century exemption claims reveals a lack of historical support for religious accommodations. Rather than being “the most telling point,” the absence of exemption decisions reflects historical differences that call into question overly simplistic originalist arguments. In particular, prevailing theological views, skepticism of courtroom declarations, and judicial deference better explain nineteenth-century cases than does a wholesale rejection of judicially enforceable religious exemptions. Understanding these factors also helps explain the apparent erosion of support for religious accommodations in the middle of the nineteenth century. This reinterpretation of the historical record suggests not only that Smith and Boerne may be inconsistent with original meaning but also that an originalist approach to the Free Exercise Clause may not be able to account for shifts in ideas about religious freedom preceding the adoption of the Fourteenth Amendment.
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