University of Cincinnati Law Review


The Supreme Court wrongly decided Employment Division v. Smith. Without briefing or argument over the Free Exercise Clause’s meaning, Smith eliminated the constitutional right to exercise religion and replaced it with an equal protection rule. The decision threatens religious freedom and encourages conflict. The Supreme Court should revisit Smith. This article shows that the majority’s arguments in Smith fail and contradict the Free Exercise Clause’s text, purpose, and original meaning.

The Smith majority gave no sound legal or policy reason for its decision. Indeed, the decision conflicted with settled precedents that no party questioned. Nor did it determine the constitutional text’s meaning or examine historical evidence. The decision solely rests on the majority’s mistaken fears that religious liberty would require arbitrary judicial balancing and cause anarchy.

The Free Exercise Clause’s text, purpose, and original meaning confirm that the clause protects religious freedom, not equality. The text guarantees the right to exercise religion without government interference—and it presents no exception. History shows why. The founding generation considered religious liberty an unalienable right that supersedes civil duties. This understanding prompted the Founders to protect religious freedom. To this end, the founders used a familiar legal concept from the colonies and states: the free exercise principle. It protected the broad right to freely exercise religion but excluded practices that would endanger peace and safety. The Founders enshrined this principle in the Free Exercise Clause.