Revisiting Four Popular Myths About the Peyote Case

Content Provider	Semantic Scholar
Author	Forren, John P.
Copyright Year	2006
Abstract	At least within the church-state community, one is hard pressed to find a Supreme Court ruling held in lower esteem than Employment Division v. Smith.1 According to many commentators, Smith marked an abrupt and nonsensical departure from a decades-old practice of safeguarding religiously motivated conduct under the Free Exercise Clause. At least since Sherbert v. Verner, religious objectors who had challenged burdensome public policies-even facially neutral oneshad enjoyed a general First Amendment presumption in favor of exemption unless government officials could show both a compelling state interest and least restrictive means.2 Yet in Smith, a sharply divided Court displaced this general strict scrutiny standard in favor of a long-dormant rule rooted in Reynolds v. United States. 5 Henceforth under the Free Exercise Clause, Smith declared, instances of overt religious discrimination by government would still trigger the most stringent form of judicial review. But when a generally applicable policy merely created an incidental burden on religion, the First Amendment would generally require no special justification at all.4 Despite its remarkable unpopularity across the ideological spectrum, Smith has remained the Court's leading pronouncement on the scope of First Amendment free exercise rights for the past fifteen years. During that time, a substantial body of conventional wisdom has developed, among both experts and more casual observers, about the core First Amendment mandate in Smith and its practical impact on religious freedoms. Indeed, at least four basic suppositions about Smith have become so widely accepted that they now stand essentially as "seminal truths" in many contemporary discussions of free exercise rights. First, commentators often suggest, judicially enforced protections
Starting Page	209
Ending Page	209
Page Count	1
File Format	PDF HTM / HTML
Volume Number	8
Alternate Webpage(s)	https://www.law.upenn.edu/journals/conlaw/articles/volume8/issue2/Forren8U.Pa.J.Const.L.209(2006).pdf
Alternate Webpage(s)	https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1270&context=jcl
Language	English
Access Restriction	Open
Content Type	Text
Resource Type	Article