Tuesday, July 27, 2021
Doug Laycock and I have posted this draft law review article on SSRN (link here), with the title and journal information above. We discuss the specific implications of Fulton v. Philadelphia for current Free Exercise Clause standards under Employment Division v. Smith. But, as the abstract states,
we focus on describing what approach should replace Smith, and responding to the questions that Justice Barrett raised [in her Fulton concurrence]. We argue for a flexible version of strict scrutiny, and for at least serious intermediate scrutiny. Free exercise review should typically be stronger than the weak intermediate scrutiny governing some free speech contexts: time, place, and manner restrictions and symbolic conduct. Those cases permit regulation when alternative means of communication are available, but when government substantially restricts a religious practice, frequently there are no “alternatives” to the practice. The logic and purposes of free exercise can generate a demanding but workable standard for challenges to generally applicable laws.