Employment Division v. Smith

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

You may also like...

5 Responses

  1. Marc DeGirolami says:

    Gerald, I disagree with the Smith decision as well and I found very interesting the discussion of the Cherokee/Protestant missionary case (whom do you think the law was disadvantaging — the Cherokee (a minority), the Protestants (a majority, depending on the sect), both?).

    But I do not agree that Smith has endured because it only disadvantages minority religions. I think Smith has lasted because it almost immediately prompted the Religious Freedom Restoration Act and its state analogues — because it threw religious liberty into the hands of the legislature and the legislature (mostly, but not always) responded by reinstituting the Sherbert test (as well as Congress’s later response with the Religious Land Use and Institutionalized Persons Act).

    Some people think this was a very good development for religious liberty. I don’t think so, for a variety of reasons. But highly unpopular religions have been able to recover under these statutes, a fact which may also explain Smith’s longevity. I think there is also some evidence that notwithstanding the ostensibly hard-edged rule of Smith, lower court judges have been interpreting the holding somewhat liberally (using the fundamental rights “hybrid” carve-out) and broadening its reach.

  2. Marc DeGirolami says:

    Sorry, Gerard — my apologies for the error on your name.


  3. PrometheeFeu says:

    I agree with the Smith decision for several reasons.
    1) If a religious affirmative defense is generally possible, it creates a situation in which to quote Scalia: “To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’ – permitting him, by virtue of his beliefs, ‘to become a law unto himself,’ contradicts both constitutional tradition and common sense.'” That is in effect the end of the rule of law.

    2) If there are to be any restrictions at all on the use of such an affirmative defense, it becomes necessary for the courts to be able to evaluate the religiosity of the defendant’s beliefs. This is necessary as otherwise any defendant will be able to invoke such an affirmative defense. What religions will be accept? Is it necessary that the defendant be part of an organized religion? What if he is the only member of his religion? Is that acceptable? This is a whole can of worms which would be likely to lead to the creation of a hierarchy of religions in violation of the First Amendment.

    I think a correct reading of the First Amendment is that it protects all from being persecuted by the government for their religious beliefs. I think it is a mistake to read it as providing those with a religion with a shield against the law when it goes against their religion.

    As for the specific case of male child circumcision, I think there is a very valid argument to be made that it is an abusive mutilation of the child. It is irreversible and the child cannot do as much as express dissent. In those respects, it is quite similar to female circumcision which is rightly banned as being abusive. I think it would be quite inappropriate for any court to decide that the rights of the child to their own bodily integrity are inferior to the parent’s right to practice their religion.

  4. linda Massie says:

    It is quite clearly child abuse,to prevent any child from reaching maturity with parts of their genitals removed due to parental religious beliefs whether they be Jewish, Muslim or Christian extraction.

    In the United States male genital mutilation has been normalised for babies at birth, this is not the case elsewhere and it is time that American socety recognised the hundreds of deaths annually from this practice in their own country.

    Save the children end this abuse now.

  5. AF says:

    If the SF ordinance passes, it might be struck down under the CA constitution; the California Supreme Court has reserved the question as to whether the California Constitution applies Smith or Sherbert See North Coast Women’s Care Medical Group, Inc. v. Superior Court, 44 Cal. 4th 1145, 1158 (2008).