Garnett on Employment Division v. Smith

Richard Garnett (Notre Dame Law School) has posted "The Political (and Other) Safeguards of Religious Freedom" (Cardozo Law Review, Vol. 32, p. 1815, 2011) on SSRN.  Here's the abstract:

This essay is a contribution to a symposium marking the 20th anniversary of the Supreme Court’s still-controversial decision in Employment Division v. Smith. That decision, it is suggested, should not be read as reflecting or requiring hostility or indifference towards claims for legislatively enacted accommodations of religion. Smith is not an endorsement of religion-blind neutrality in constitutional law; instead, it assigns to politically accountable actors the difficult, but crucially important, task of accommodating those whose religious exercise would otherwise be burdened by generally applicable laws. The essay goes on to suggest several things that must be true of our law and politics if this assignment is to work well, that is, to in fact promote and protect religious freedom. Among other things, it is proposed that governments should attend carefully to the “infrastructure” of religious freedom, and should work to create and sustain the institutional and other conditions that are conducive to religious liberty. And, notwithstanding Smith, courts should enforce vigorously, using judicially manageable standards, the church-autonomy principle and the institutional separation of religious and political authority. After all, the “political safeguards” of religious freedom can be effective only if there are work in society associations and authorities that are not merely political. 

And from the text: 

The Smith decision has been the target of sustained and withering criticism from scholars whose judgments I respect, and it has been widely excoriated as horribly and harmfully wrong.

After surveying some of the criticisms of Employment Division v. Smith, Garnett writes:

I should really hate this case. And yet, I do not. . . .


For starters, I do not think Smith is best, or even fairly, read as endorsing or expressing the view that religious freedom is anything other than a fundamental human right. I do not “hear” in the majority opinion any reservations about the importance of protecting and promoting that freedom in the complicated conditions of a pluralistic, diverse society. I do not read Smith as constitutionalizing the claim that religion is simply a matter of private belief and is not also about conduct, worship, liturgy, ritual, association, and authority.35 The message, or teaching, of Smith is not that religion-blind formal “neutrality” is the appropriate, let alone the required, approach for governments to employ with respect to religious belief, believers, and their actions.36 It does not announce a rejection of Professor McConnell’s correct statement that governments may and should “take religion specifically into account” for the purpose of “allowing individuals and groups to exercise their religion.”37 True, Justice Scalia, writing for the majority, emphasizes the continued need for judicial enforcement of a rule against anti-religious discrimination and “governmental classifications based on religion”;38 he does not, however, declare that religious freedom is reducible to nothing more than freedom from religion-related discrimination or that our commitment to religious liberty is only a particular illustration of or vehicle for our more general commitment to equality, or to liberty, or to “conscience.” . . . 

Smith affirms not the irrelevance or the dangers of religious freedom, but instead what my colleague Professor Kelley has called the relative primacy of political actors in the accommodation of religion. In other words, it is less a case about the content and foundations of religious freedom, or about minimizing the harms that religiously motivated conduct can cause to the common good, or about throwing up judicial roadblocks to exemptions, accommodations, and compromises, than it is about institutional competence, comparative advantage, federalism, and the limits of judicial review.45 These considerations should not be regarded as unwelcome or hostile interlopers in the religious liberty conversation.

Many defenders of religious liberty have viewed Smith as a disaster.  This relatively short essay is a notable dissenting view, offering very interesting defense of Smith by a scholar who cares deeply about religious life.

Update: Garnett's essay gets Larry Solum's recommendation.