San Diego Law Review

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Now fully a generation ago, the Supreme Court decided Employment Division v. Smith, which held that religious believers generally have no right to exemptions from neutral and generally applicable laws. But in the twenty-five years since Smith, the situation has grown more complex. Shortly after Smith, Congress passed the Religious Freedom Restoration Act (RFRA) and later the Religious Land Use and Institutionalized Persons Act (RLUIPA). And many states followed suit, either adopting state Religious Freedom Restoration Acts (state RFRAs) or construing generously the religious-freedom provisions of their state constitutions. As a result, the compelling-interest test discarded by Smith now again applies to the federal government and more than half the states. And there have been other developments too. The Supreme Court’s adoption of the ministerial exception in Hosanna-Tabor v. EEOC, for example, carved out a constitutional exception for internal church decisions that sits in some tension with Smith.

Yet these protections for free exercise have also grown more controversial. Last term, the Supreme Court decided the Hobby Lobby case, holding that the Religious Freedom Restoration Act protected for-profit corporations. The year before, the New Mexico Supreme Court decided Elane Photography, about whether a Christian photographer could refuse to photograph a lesbian couple’s wedding on grounds of religious conscience. Hobby Lobby and Elane Photography raise important legal questions. But they also have changed the political debate. These two cases—probably more than any others—have become the face of free exercise to the general public.

It is not clear that free exercise can withstand this association. After Smith, religious exemptions depend on legislative support, which in turn hinges on popular support. In recent years, proposed state RFRAs have been shot down in several places, largely because of fears of cases like Hobby Lobby and Elane Photography. No state RFRA has yet been repealed. But no legislation can survive if public opposition to it grows sufficiently strong.