Employment Division v. Smith, is a virtual mini-course about certain aspects of

Employment Division v. Smith, is a virtual mini-course about certain aspects of democratic theory that often arise in constitutional law and politics. Employment Division and other free exercise decisions illustrate some of the alternative tests the Supreme Court has developed for determining how to balance the rights of religious minorities against the interests of the government (and the majority) when restrictions are imposed on religious practices. For example, note the difference between the compelling state interest test used in Sherbert v. Verner and the test used in Scalia’s opinion of the court in Employment Division. Similarly, note how the Court justified the Sunday closing laws in the earlier decision in Braunfeld v. Brown, a case discussed in your text book.
Scalia’s opinion of the court in Employment Division raises several complex ideas about democracy and constitutional interpretation. He writes, for example, that to apply the compelling state interest test from Sherbert v. Verner in this context “…would be courting anarchy….” Consider what Scalia is suggesting by using the word “anarchy”. Scalia also argues that leaving the “accommodation” of interests at stake in this case to the “political process” will place certain religious groups at a “disadvantage” but this is a trade-off he’s willing to accept.
What’s the disadvantage he’s referring to and is he correct about this? Should we accept such disadvantages? Debates about these dilemmas inherent in democratic governance have a long history in constitutional law and go back at least to the concerns of some of the Founders who wrote the Constitution and and who were concerned about protecting minorities from the tyranny of the majority. Ideas relating to this problem are found in the Epstein, McGuire and Walker text book on pp. 93-94; 196, and 557 in their discussion about “Footnote 4” in the Supreme Court decision United States v. Carolene Products.
Use this discussion board forum to present your views on whether you think Justice Scalia’s opinion of the court or the dissent written by Justice Blackmun made the stronger argument in the case. Or, do you think that Justice O’Connor presented the stronger argument? Although a brief summary of the case should be included your emphasis should be on which justice you think addressed the issue in the Smith case the best. The central problem reduces to whether in this case a religious minority should be able to claim an exemption from otherwise valid law, as in Wisconsin v. Yoder and Sherbert v. Verner, among other cases.
what is “religion” in this context? How is it to be defined? In other words, what kinds of activities constitute the “religion” within the meaning of the First Amendment and thus trigger its protection? Likewise, the First Amendment prohibits the abridgement of freedom of speech. But again, what constitutes “speech”? And, can speech however we define it, be curtailed under any circumstances even though the prohibition in the First Amendment against “infringement” appears to be absolute when the words say “Congress can make no law….”?
Required book: Epstein, McGuire and Walker, Constitutional Law for a Changing America: Rights, Liberties and Justice. Eleventh Edition. 2022. Sage/CQ Press. ISBN: 978-1-5443-9125-0