# The Nine Lives of Employment Division v. Smith
Employment Division v. Smith, the 1990 Supreme Court decision that gutted religious liberty protections, refuses to die quietly. The case established that neutral laws of general applicability need not satisfy strict scrutiny under the Free Exercise Clause, even when they substantially burden religious practice. Justice Antonin Scalia's majority opinion rejected the idea that religious adherents deserve exemptions from generally applicable regulations.
The decision provoked immediate backlash. Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 to restore the strict scrutiny standard for federal laws. States followed suit with their own RFRAs. Yet Smith itself remained on the books, governing state and local laws.
The fault lines persist. Smith permitted Oregon to deny unemployment benefits to Native American Church members fired for sacramental peyote use. The precedent has authorized denials of religious exemptions across contexts: healthcare mandates, animal sacrifice restrictions, land-use regulations, and military grooming standards.
Recent developments signal continued instability. The Supreme Court has nibbled at Smith's edges without overruling it directly. In Church of the Lukumi Babalu Aye v. City of Hialeah (1993), the Court struck down a law targeting animal sacrifice while claiming Smith remained good law. In Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission (2018), the Court avoided Smith's framework entirely by finding anti-religious animus in the decision-making process.
Conservative justices have grown openly hostile to Smith. Justice Samuel Alito questioned its logic in Fulton v. City of Philadelphia (2021), suggesting the framework survives only because overruling it would create instability. Justice Clarence Thomas called for Smith's explicit rejection.
The doctrine's survival reflects deep jurisprudential tension.