The Legacy of Employment Division v. Smith

3 Responses to “The Legacy of Employment Division v. Smith”

• Steve Smith

  October 12, 2010 at 2:55 am

  It’s an informative and sobering essay.

  Last week Cardozo Law School held a conference examining the Smith decision twenty years after. I presented a paper suggesting that secular egalitarianism may be the modern equivalent of the old religious orthodoxies that were coercively imposed, and that it is the principal threat today to religious freedom. I tried to put this possibility in somewhat speculative terms, expecting to be criticized as alarmist. Somewhat to my surprise, a number of the participants agreed, explicitly or performatively, but with the opposite valence, so to speak; they viewed religious liberty, it seems, mostly as an impediment to the protection of children or the advancement of equality in its various contemporary forms. These are important goals, of course, but it was remarkable, I thought, how for a number of participants religious freedom seemed to count for next to nothing. (It was remarkable as well how much trust there seemed to be in the state: if we could just move the important matters of life out of the control of churches and families and into the benign jurisdiction of the state, all would be well.)

  You may want to check out the symposium issue when it appears to see whether I’m accurately characterizing the positions. Of course, the views of participants in the conference may not be representative of views in the country generally. We can hope.
• richardgarnett

  October 12, 2010 at 12:01 pm

  Like Steve, I came away from the Cardozo conference somewhat troubled by the fact that some (many?) seem to see religious liberty as an obstacle to be overcome, in order to make progress on various fronts (abortion rights, increased state control over medical decisions involving children, etc.). It seems to me that the Smith regime (which welcomes legislative accommodations) *can* work, but only in conditions where religious freedom is seen as a good by all.
• Marc DeGirolami

  October 17, 2010 at 7:40 pm

  Mike, Steve, and Rick,

  Just a quick thought, mostly inspired by Steve’s comment about a new and boundless faith in the state. It was a working assumption of Smith that we *ought* to trust the state. Smith’s logic depends on a cultural sensibility which is inclined toward broad tolerance of religious liberty. That is, the framework of Smith can work only given certain optimistic premises about (1) what the state is inclined to tolerate, and also (2) what citizens want the state to tolerate.

  It may be unusual to describe Justice Scalia as an optimist, but I believe that Smith’s foundations really do lie in an optimism about the state’s wisdom and generosity in this realm.

  I don’t share it. I think a more realistic appraisal is that many people’s natural tendency is to interpret a doctrine which says that we don’t need to tolerate religious difference to mean that, in the absence of a very good reason, we should not be tolerant. And the existence of that good reason is seen to be controlled by the question whether the state is being formally neutral or not.

  My own belief is that the working presumption should be pessimism. We should expect that intolerance, not tolerance, will exert the greatest gravitational pull, especially after Smith gave it the ostensible theoretical bona fides of a nice, clean, easily-applied egalitarianism. Constitutionalization has always been a safeguard against our, and the state’s, worst inclinations. Better to have left well enough alone with a balancing regime. Even that isn’t ideal, but it at least reflects a watered-down form of healthy and clear-eyed pessimism.