Shuffling Constitutional Cards

You cannot bring an as-applied challenge to a general law that burdens your free exercise of religion.  This is the holding of Employment Division v. Smith (or at least the basic holding–there are some qualifications).  Suppose I instead bring a free speech claim on behalf of my desire to say a prayer or do something religious.  You can make an as-applied challenge to a general law on free speech grounds.  How should a court address this sort of claim?

I ask because the New Mexico wedding photographers who were found liable for violating the state’s non-discrimination law because they refused to shoot a same-sex commitment ceremony made both claims (free exercise and free speech) in state court.  In their certiorari petition, though, they are only making a free speech claim.  Can these claims be separated? In other words, if the motivation is religious, then shouldn’t Smith apply?  If not, isn’t it pretty easy to circumvent Smith? And doesn’t the distinction between free speech and free exercise require courts to make sensitive judgments about what constitutes a genuine religious claim?

Comments–gmaglioc@iupui.edu

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