Wesley J. Campbell, a student at Stanford Law School, has posted a very interesting looking note, A New Approach to Nineteenth-Century Religious Exemption Cases. The abstract follows. — MOD
Scholars frequently cite early nineteenth-century cases to ascertain the original meaning of the Free Exercise Clause. Previous studies, however, have ignored crucial trends in those decisions, thus leading to mistaken emphasis on the denial of religious accommodation claims. This Note argues that prevailing theological views, skepticism of courtroom declarations of religious belief, and contemporary notions of judicial deference better explain nineteenth-century cases than does a wholesale rejection of judicially enforceable religious exemptions. This novel approach clarifies previously unexplained tensions in early free exercise opinions. It also suggests that the Supreme Court’s holding in Employment Division v. Smith is inconsistent with many nineteenth-century decisions, notwithstanding Justice Scalia’s claim to the contrary in his concurrence in City of Boerne v. Flores. Moreover, past studies have failed to appreciate the enormous midcentury shift in constitutional meaning in response to Mormon polygamy and widespread Catholic immigration. This transformation leaves originalism incapable of providing a consistent account of the Free Exercise Clause.