After being cited twice yesterday in the Court’s much anticipated ruling on religious liberty, JWI Trustee and Senior Scholar Gerard V. Bradley declares that “Fulton v. Philadelphia is a remarkable case indeed.” Professor Bradley outlines where the Court currently stands on the controversial 1990 ruling in Employment Division, Department of Human Resources of Oregon v. Smith. According to Professor Bradley’s calculations, three justices – Justices Thomas, Alito, and Gorsuch – firmly hold that Smith was wrongly decided, while two justices – Justices Kavanaugh and Barrett – think it was wrong, but express worries about what would replace it. Nevertheless, the Court “decided the case on rather than against Smith.” Professor Bradley concludes the piece by outlining two key takeaways from the Court’s ruling that bode well for the future of religious liberty jurisprudence.
Some excerpts from the piece:
“Plainly put, it is not that believers won the battle but lost the war in Fulton. It is rather that—according to Alito (joined by Justices Thomas and Gorsuch)—victory in the war was at hand, and yet forsaken.”
“I do not think Alito is right about the original understanding of Free Exercise. He generously cited twice an article of mine arguing against his position. Nonetheless, he carried Justices Thomas and Gorsuch with him—but no one else.”
“So, there seem to be five Justices ready or strongly inclined to overrule Smith somewhere down the road. That is big news. And it could break soon. Justice Gorsuch wrote in his Fulton concurrence: ‘Smith committed a constitutional error. Only we can fix it. Dodging the question today guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer.'”
“All nine Justices (presuming safely upon Thomas, Gorsuch, and Alito) say, in a red-hot culture-war case, that a believer’s view that a value judgment is at stake in legal relationship, over against an opponent who insists that it is a matter of neutral, if not technocratic, secular criteria, is going to be the Court’s view.”
Read the whole piece here.