Free Exercise Jurisprudence: Does Mahmoud Silently Overrule Smith

 What is left of Smith’s holding that there is no free exercise claim against laws that are neutral and generally applicable?

Answer—not much, in fact I have argued that Smith has been silently overruled by Mahmoud.

Covid cases—Cuomo, Tandon, etc.

This Court’s decisions have made the following points clear.

First, government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise. This is the most favored nation theory that some of us have been arguing since Smith and Lukumi were decided. Even if the law is broadly applicable, if it contains any comparable secular exemption then it is not generally applicable under Smith.

Second, whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue. Comparability is concerned with the risks various activities pose, not the reasons why people gather.

Fulton v. City of Philadelphia (unanimous decision Chief Justice Roberts opinion)

Fulton holds that even if a law is otherwise completely neutral and generally applicable, it will still trigger strict scrutiny if it provides for some kind of ad hoc discretionary individualized exemption process: “A law is not generally applicable if it “invite[s]” the government to consider the particular reasons for a person’s conduct by providing “‘a mechanism for individualized exemptions.’”

In Fulton, the antidiscrimination policy concerning prospective foster or adoptive parents applied generally “unless an exception is granted by the Commissioner or the Commissioner’s designee, in his/her sole discretion.” The mere existence of that discretionary exemption process renders the law not generally applicable and thus strict scrutiny applied.

Does Mahmoud overrule Smith?

Justice Alito decided that the burden on the right of parents to direct the religious upbringing of their children was so severe in Mahmoud as to trigger strict scrutiny under the Free Exercise Clause “regardless of whether the law is neutral and generally applicable.” 

In other words, the precedent the Court applied was Yoder (and Pierce v Society of Sisters), not Employment Division v Smith.

So, does Mahmoud overrule Employment Division v. Smith? Or is it merely an exception to the general applicability test created by Smith?

Mahmoud does not explicitly overrule Smith, but I think it effectively and mortally wounds Smith’s general applicability test.

Smith may not be dead, but it is expiring on life support. Mahmoud makes clear that Yoder is not a narrow exception for the Amish, nor has it ever been confined “to its facts.” (p. 29)

 To the contrary, says Justice Alito, “Yoder is an important precedent of this Court…[and it] “embodies” a general principle of law “and that principle provides more robust protection for religious liberty than the alarmingly narrow rule that the dissent propounds.”

Just as the Lemon test was mortally wounded before Kennedy v. Bremerton mercifully euthanized that rule, Smith is equally dead as a doornail and only awaits the mercy of being finally put to sleep by the Court sometime in the near future.

Yoder, not Smith, is now the law of Free Exercise, and that law is that a substantial burden on the free exercise of religion triggers strict scrutiny “regardless of whether the law is neutral or generally applicable.” (p. 36)

When government substantially interferes with parental rights, strict scrutiny applies, even if the law is neutral and generally applicable.

When government shuts the doors of churches and religious assemblies, as it did during the Covid years, strict scrutiny applies, even if the law is neutral and generally applicable.

And when government otherwise substantially interferes with religious exercise, strict scrutiny applies, even if the law is neutral and generally applicable.

Smith has been repudiated, and Yoder and the substantial burden test is now the law of Free Exercise.

Originalism vs Living Constitution: My Lecture

 

In case you are interested, here is a video lecture in which I discuss the Great Debate--Originalism vs. The Living (Common Law) Constitution:

Duncan Originalism vs Living Constitution:

https://unl.yuja.com/V/Video?v=6827926&node=29033304&a=188047276&autoplay=1

 

 I share it just in case you are interested in learning about the Great Debate about how to read the Constitution. And here are two good short articles on originalism vs the Living Constitution:

 

Strauss article (link); Sollum Article (link) 

 

 Finally, here is a quotation from Justice Gorsuch to the NYT (link) on his view of originalism:

     So what originalism is, is just the simple idea that you are entitled to rely on the written words in the Constitution. We the people, the American people, bothered to write it down. Write down the law. It was the first written constitution of its kind in human history. And so when it promises you a right to a jury trial, when it promises you a right to confront your accuser, when the laws enacted promised somebody by treaty certain rights, an originalist, a textualist, will take that seriously. And there’s going to be no pragmatic argument, no argument from efficiency. Nothing that can undermine that. Now, if you want to change the law, there are lawful processes for doing so, but the originalists and textualists, simply put, seek to honor written law.

It seems clear that he duty of a court is to follow the written law (as opposed to amending the written law).

Prof. Solum on Originalism Prof. Strauss on Living Constitution

I would like you all to pay careful attention to Prof. Solum's statement on originalism and Prof. Strauss's statements on Living Constitutionalism.

Here are some questions to consider

1. What is Originalism?

2. How does Originalism differ from Living Constitutionalism?

3. Is Originalism required if the Court is to follow the rule of law as opposed to the rule of men? What is the Rule of Law? Is a "common law" constitution part of the Rule of Law or the Rule of Man?

4. If ratification by three-fourths of the states is what gives the Constitution legitimacy as coming from we the people in the several states, what are we to think when the Court employs  "living constitutionalism" to judicially amend the Constitution? Is this merely a legitimate form of the common law?

5. If the Court can't judicially amend the Constitution to keep it up to date with the changing circumstances of 21st Century America, how will we go about dealing with change?

 

6.  Prof. Strauss defends the living, common law constitution this way:

 " A common law Constitution is a "living" Constitution, but it is also one that can protect fundamental principles against transient public opinion, and it is not one that judges (or anyone else) can simply manipulate to fit their own ideas." If the common law constitution is mostly about precedential opinions from earlier cases, exactly who wrote those opinions? Is the common law constitution "turtles [i.e., judges] all the way down"? Today's judges remodeling and extending the opinions of earlier judges? 

{See Wikipedia: "Turtles all the way down" is an expression of the problem of infinite regress. The saying alludes to the mythological idea of a World Turtle that supports a flat Earth on its back. It suggests that this turtle rests on the back of an even larger turtle, which itself is part of a column of increasingly larger turtles that continues indefinitely}