Notice in Smith Justice Scalia re-interpreted Sherbert not as a stright-forward free exercise decision, but rather as a case involving a system of “individualized governmental assessment of the reasons for the relevant conduct.” (p.1798) As the Court said in Lukumi: "As we noted in Smith, in circumstances in which individualized exemptions from a general requirement are available, the government 'may not refuse to extend that system to cases of "religious hardship" without compelling reason.'”
In other words, the subjective and ad hoc process of deciding whether an applicant for unemployment benefits had refused without "good cause" to accept "suitable work" renders the unemployment compensation law not neutral and generally applicable. Do you see how this works?
We will talk much more about this next week, but let's spend some time today in our Zoom session trying to understand this interpretation of Sherbert.
By the way, when governors and local health commissars decide to exempt "essential" activities from lockdowns and draconian Covid restrictions, how do they know which activities are essential (and thus exempt) and which are non-essential and thus not exempt? How do they determine that a casino is essential and church services are non-essential? Is this an ad hoc and subjective individualized exemption process? If so, what standard of review is triggered under Smith?
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