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Friday, October 23, 2020

Hybrid Cases and Free Exercise

In Employment Division v. Smith, the Supreme Court stated that the case presented "a free exercise claim unconnected with any communicative activity or parental right." The Court distinguished Smith from "hybrid" precedents where a free exercise claim was made "in conjunction with other constitutional protections." In those "hybrid" cases, the Court said that the Constitution might require that an exception be given to a "generally applicable and neutral law" as applied to religious motivated conduct.

When the Court takes up Fulton v. City of Philadelphia in two weeks, one of the questions presented is whether Smith should be overruled. I wonder, though, whether the Court might just decide to read Smith more literally. Imagine if the Court said that exceptions are possible in free exercise cases so long as there is also a plausible free speech claim. That would cover many (though not all) cases where Smith is applied. The baker in Masterpiece Cake Shop made a free speech and a free exercise claim. The same two claims were made in Fulton (though the free speech claim was not appealed from the Third Circuit). Thus, Smith need not be overruled. It can be applied more narrowly consistent with what the Smith Court said.

The broader question is whether the Court wants to take on this balancing role. Masterpiece Cake Shop suggested that they did not, but maybe with Justice Kavanaugh and Justice Barrett things will be different. 

Posted by Gerard Magliocca on October 23, 2020 at 09:26 AM | Permalink


If homosexuals have to be able to marry because otherwise the government is discouraging homosexuality by treating them as second-class subjects, then wouldn't atheists have to be able to smoke peyote (or have abortions) otherwise the government is discouraging atheism by treating them as second-class subjects?

Or to put it the other way, if peyote (or abortion) is illegal for atheists wouldn't it also have to be illegal for christians, otherwise you're encouraging people to convert to christianity to become first-class citizens?

Posted by: Class Pandemic | Oct 24, 2020 7:05:16 PM

In Hosanna-Tabor, Roberts flagged one subcategory for free exercise categories:

"But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself."

This suggests a [possible] difference between that & "outward" acts like public accommodations.


The "hybrid" issue was ridiculed by some & Justice Souter argued it is rather hard to determine what counts as "hybrid." But, free exercise cases in which the religious party won tended to be either clearly discriminatory or a sort of "hybrid." Early free exercise cases like Cantwell and Barnette (treated as a free speech issue though concurring justices flagged it as also a religious liberty matter) were free speech/assembly cases too.

I think the citation in Smith (a ruling I think overbroad) had something to it. There is something special involved in Yoder, something involving teaching and raising children in a faith, that is a sort of core religious liberty matter. "Actions" is rather broad. There needs to be some line drawing and the Yoder case (the win there involving a general applicable law atypical) is a "mixed" one for that purpose.

OTOH, how much Fulton helps there is unclear.

Posted by: Joe | Oct 23, 2020 2:38:49 PM

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