Fulton: 5 Justices Agree that Smith Was Wrongly Decided

 Barrett (Kavanaugh): "In my view, the textual and structural arguments against Smith are more compelling. As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination."

But not sure whether strict scrutiny is the correct test.

 

Alito (Thomas & Gorsuch): 

We should reconsider Smith without further delay. The correct interpretation of the Free Exercise Clause is a question of great importance, and Smith’s interpretation is hard to defend. It can’t be squared with the ordinary meaning of the text of the Free Exercise Clause or with the prevalent understanding of the scope of the free-exercise right at the time of the First Amendment’s adoption. It swept aside decades of established precedent, and it has not aged well. Its interpretation has been undermined by subsequent scholarship on the original meaning of the Free Exercise Clause.

Contrary to what many initially expected, Smith has not provided a clear-cut rule that is easy to apply, and experience has disproved the Smith majority’s fear that retention of the Court’s prior free-exercise jurisprudence would lead to “anarchy.” ....

 Smith was wrongly decided. As long as it remains on the books, it threatens a fundamental freedom. And while precedent should not lightly be cast aside, the Court’s error in Smith should now be corrected. . . .

If Smith is overruled, what legal standard should be applied in this case? The answer that comes most readily to mind is the standard that Smith replaced: A law that imposes a substantial burden on religious exercise can be sustained only if it is narrowly tailored to serve a compelling government interest.

Whether this test should be rephrased or supplemented with specific rules is a question that need not be resolved here because Philadelphia’s ouster of CSS from foster care work simply does not further any interest that can properly be protected in this case. As noted, CSS’s policy has not hindered any same-sex couples from becoming foster parents, and there is no threat that it will do so in the future. . . .