Responding to the Fulton decision, Christopher Wolfe argues that conservative judges who wish to uphold originalism should not overturn Smith.
“The Smith opinion was written by Justice Antonin Scalia, the greatest twentieth-century Supreme Court originalist—maybe the ‘re-founder’ of originalism on the Court. It is surprising, and perhaps ominous, that the newly ‘conservative’ Court in 2021 should target one of the few decisions in which he was able to return the Court’s jurisprudence to a more traditional, or originalist, form.”
“Should judges decide when religious believers have a right to exemption from secular laws? From 1963 to 1990, the Supreme Court said yes. Beginning with Sherbert v. Verner, the Court employed a modern ‘compelling state interest’ test, under which judges weighed the importance of an asserted state interest against any free exercise claim to an exemption.”
“Why had earlier judges in America not employed such a ‘balancing’ test? Because they thought such a task was not judicial. It required the judges to weigh the importance of an asserted state interest, but where was the judge to find legal guidance to do that? The Constitution doesn’t say anything about such matters. Weighing state interests is a flat-out policy judgment, and that is a legislative task. Scalia gave considerable weight to precedent, but he was very clear about why a judge should reject the Sherberttest: it made him something other than a judge: a legislator. Legislatures have the power to provide exemptions from laws, but judges do not.”
“I have no objection to the proposition that the Free Exercise Clause did not protect religious acts that endangered the public peace or safety. Of course it doesn’t—because laws protecting public peace and safety do not directly target the free exercise of religion; they affect it only incidentally. But there is no textual ground for judges to uphold government acts that incidentally affect religious practices only in cases where the latter endanger public peace or safety.”
“A return to Sherbert would provide a useful tool to protect conservative religious groups. But I think Scalia had it right: judges don’t have the authority to interpret the Constitution to get better policy results, even if those are really, really important results.”
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