Publication Title

Alabama Law Review


Free Exercise Clause, First Amendment, Strict Scrutiny, Reynolds v. United States, Employment Division v. Smith, Legal History, U.S. Constitutional History, Church and State, Religious Accommodation, Polygamy, Church of Latter Day Saints, Davis v. Beason, Fulton v. City of Philadelphia

Document Type



This Article calls for a profound reevaluation of the stories that are being told today about the Supreme Court’s free exercise jurisprudence starting with the Court’s seminal 1879 decision in Reynolds v. United States and proceeding up to the present day. Scholars and judges today agree that the Supreme Court in Reynolds interpreted the Free Exercise Clause of the First Amendment to protect only religious belief and not religiously motivated action. All casebooks today embrace this interpretation of the case, and the Supreme Court has regularly endorsed it over the past twenty years, most recently in 2022. However, this Article shows that this reading of Reynolds appeared recently and is wrong. It shows, as well, that restoring the proper understanding of Reynolds could have profound consequences, both for our understanding of the history of American free exercise jurisprudence up until the Court’s notorious 1990 decision in Employment Division v. Smith and for our imagination as we think about directions in which free exercise jurisprudence could move in the future when, as is increasingly likely, Smith is overruled.

The Justices who signed the Reynolds opinion understood themselves to be adopting a position very different from the one today ascribed to them. To them, the Clause protects not only belief, but also the natural right to act in accordance with the dictates of one’s religion, and it thus required judges to subject religiously neutral, generally applicable laws to a form of independent review to ensure that the government was not interfering with religious practice in a manner that those judges found to be objectively unreasonable. Adopted before the classic tiers of scrutiny analysis had emerged, it functioned in practice like what would be today a mild form of heightened scrutiny more demanding than rational basis but less demanding than strict scrutiny. For roughly a century thereafter, the Supreme Court appears consistently to have recognized that Reynolds had protected religiously motivated actions as well as beliefs, although they were unclear and occasionally inconsistent about the level of protection each should receive as the Court moved towards its contemporary tiers of scrutiny framework.

Unfortunately, during the 1960s and 70s, academics began to misread Reynolds as a case holding that the Free Exercise Clause leaves religious action entirely unprotected. Inexplicably, this reading became orthodox, and in 1990, in Employment Division v. Smith, the Supreme Court imported this misreading into the Court’s jurisprudence, citing Reynolds as a reason to stop applying any form of heightened review to neutral, generally applicable laws which interfere with religious obligations. Restoring the original meaning of Reynolds and its progeny will help us reframe our understanding of the history of U.S. free exercise jurisprudence up until Smith, and it will provide a roadmap for the current Court as its Justices consider ways that they can overcome the deep divisions laid bare recently in Fulton v. City of Philadelphia—disagreements about whether to overrule Smith and, if so, about what standard of scrutiny to apply to laws interfering with a person’s religious obligations. As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination.

Yet what should replace Smith? The prevailing assumption seems to be that strict scrutiny would apply whenever a neutral and generally applicable law burdens religious exercise. But I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced. There would be a number of issues to work through if Smith were overruled...What forms of scrutiny should apply?



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