Some subversive thoughts on free exercise doctrine…

Occasioned by the Court’s decision last weekend in the South Bay United Pentecostal Church case, over at the Volokh Conspiracy. I note that neither the Chief Justice nor Justice Kavanaugh bothers to cite Employment Division v. Smith, the central case in the area, and wonder how much doctrine drives decisions:

For both the Chief and Justice Kanavaugh, then, the case came down to judgments about which activities are “comparable” and about how much deference to give elected officials during a public-health emergency. For what it’s worth, I think the Chief had the better of the argument. But the point I’d like to focus on is this: both the Chief and Justice Kavanaugh made these judgments quickly on the basis of broad principles and common-sense assumptions. I have already noted how neither of them even referred to Smith, the controlling case in this area. No doubt, the need to decide this interlocutory application speedily precluded a more thorough legal analysis. But these opinions make one wonder whether the doctrinal superstructure of free exercise clause jurisprudence, which students, professors, and lawyers pore over with great care, has all that much importance, in the end. Perhaps free exercise cases always come down to quick, intuitive judgments—however judges explain their decisions after the fact.

You can read the whole post here.

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