If Judges Were Angels: Religious Equality, Free Exercise, and the (Underappreciated) Merits of Smith

Abstract

Since the Supreme Court issued its controversial decision in Employment Division v. Smith, scholarly commentary has, for the most part, been harshly critical. Preeminent scholars of the Religion Clauses, including Michael McConnell and Douglas Laycock, consistently have attacked Smith as an entirely illegitimate - and largely indefensible - interpretation of the Free Exercise Clause. The critics suggest that Smith fails to protect religious liberty adequately and urge that it be reversed in favor of the prior regime of strict judicial scrutiny of neutral laws of general applicability that burden religiously motivated conduct. If one frames the Free Exercise Clause in terms of advancing religious autonomy, these criticisms have substantial merit. Autonomy, however, need not serve as the principal value of the Free Exercise Clause. Advancing the equality of religious sects could serve as an alternative vision for the clause. Perhaps paradoxically, empirical legal research clearly establishes that Smith actually reduced disparities between the religious liberties of dominant and minority religious groups. Moreover, if one considers the legislative history of the Free Exercise Clause, the relevance of psychological research on the construction and recognition of particular groups as legitimate "religions" (as opposed to "sects" or "cults"), and normative considerations about the proper role of free exercise in a democratic polity, an equalitarian approach represents a better means of framing and enforcing the Free Exercise Clause. However, the article also argues that even if Smith better advances equality values than did Sherbert and Yoder, an equalitarian approach to free exercise doctrine requires stronger efforts at preventing religious discrimination than Smith undertakes.