Document Type

Article

Publication Date

2-18-2015

Abstract

Commentators often describe Employment Division v Smith as the beginning of a new era in free exercise decisionmaking Before Smith the Supreme Court typically articulated and applied a strict scrutiny standard to resolve free exercise exemption claims After Smith the Court deferred to the political process upholding any reasonable law of general applicability From a doctrinal standpoint this description of Smith is perfectly accurate and informative In this Essay I argue that from a legalpolitical standpoint Smith manifests the culmination of one type of judicial conservatism a traditionalist conservatism that had been developing since the 1970s Judicial restraint and deference to legislative institutions were the interrelated hallmarks of this traditionalist movement Soon after the Court decided Smith however a new form of conservatism began to take hold of the Court Under this neoconservatism the aggressive and confident assertion of moral and religious values became as important as judicial restraint if not more so Part I of this Essay focuses on the early writings of constitutional scholar Robert Bork as exemplifying traditionalist conservative constitutional theory Part II discusses how Smith manifests the application of this form of constitutional theory in the realm of the Free Exercise Clause Part III returns to Bork but focuses on his later writings which were infused with neoconservative themes Part IV explores how the postSmith Court has followed a more neoconservative approach in hybrid free exercisefree expression cases The Conclusion compares traditionalist and neoconservative approaches of constitutional law first emphasizing the differences and then the similarities

First Page

1791

Download

Share

COinS