The 2020 Term Cliffhanger: What Will Replace Smith as the Test for Religious Exemptions?
Featuring the 2022 – 2023 Gruss Professor of Talmadic Law
Nomi M. Stolzenberg, Nathan and Lilly Shapell Chair in Law at USC Gould School of Law
Accusations of “religious discrimination” abound. But what does that term actually mean? What is the relationship of “religious discrimination” or nondiscrimination to “religious liberty”? And how does the Supreme Court define these terms? The 2021 Supreme Court term left us with a cliffhanger with three Justices in the case of Fulton v. City of Philadelphia asserting that the time has come to reject Employment Division v. Smith, in which the Court narrowly defined religious discrimination and religious liberty. Two others—Justices Barrett and Kavanaugh—expressed their agreement that Smith should be overturned, but expressed uncertainty about what should replace it. This talk examines the various answers to this question that advocates have offered and proposes an alternative theory, which I call “blindspot discrimination,” as a solution to the conundrum of how to protect people from discrimination on the basis of religion without undermining the common good and other civil rights.