The Nine Lives of Employment Division V. Smith

Key Takeaways

• SCOTUS will hear St. Mary Catholic Parish case next term.
• Court declined to revisit Employment Division v. Smith precedent.
• Recent rulings (Tandon, Fulton) narrow “neutral and generally applicable” definition.
• Justices remain split; Alito, Thomas, Gorsuch push to overturn Smith.
• RFRA’s limited scope keeps religious exemptions alive despite Smith.

Pulse Analysis

The Supreme Court’s choice to hear St. Mary Catholic Parish v. Roy underscores a strategic focus on narrow procedural questions rather than a direct assault on Employment Division v. Smith. By framing the dispute around admission criteria for a publicly funded preschool, the justices can address the clash between state nondiscrimination policies and religious liberty without reopening the broader free‑exercise doctrine. This approach mirrors the Court’s handling of 303 Creative, where it entertained a free‑speech claim while leaving the Smith precedent untouched, suggesting a pattern of incremental jurisprudence rather than sweeping doctrinal resets.

Since Smith’s 1990 ruling, the legal landscape has shifted dramatically. Congress responded with the Religious Freedom Restoration Act, only to see its reach curtailed by City of Boerne, which limited RFRA to federal actions. More recently, the Court’s decisions in Tandon v. Newsom and Fulton v. Philadelphia have redefined what counts as “neutral and generally applicable,” effectively narrowing Smith’s applicability. By requiring strict scrutiny whenever a law favors comparable secular activities, the Court has created a de‑facto exemption corridor for religious claims, even as the formal Smith framework remains on the books.

Looking ahead, the Court appears divided. Justices Alito, Thomas and Gorsuch have openly called for Smith’s repeal, while Barrett and Kavanaugh express frustration without committing to a vote. A future case presenting an unmistakably neutral law that burdens religion could force the hesitant justices to confront the issue head‑on. Meanwhile, legislative action—such as a revised RFRA that shields religious entities from emerging nondiscrimination mandates—could either cement Smith’s relevance or render it obsolete. For businesses, schools, and faith‑based organizations, the uncertainty surrounding Smith means continued vigilance in policy design and litigation strategy.