Bad Statutes Make Bad Law: Burwell v Hobby Lobby

Employment Division v Smith was a monumental decision. The case overturned an iconic holding of the Warren Court which held that laws that incidentally burden a believer’s religious exercise must be supported by a “compelling state interest.” In so doing, Smith effectively reduced the role of the Free Exercise Clause in protecting religious exercise to one of only marginal significance. After Smith, the Free Exercise Clause would no longer be interpreted to grant religious objectors constitutionally compelled exemptions from valid and neutral laws of general applicability. The response to Smith was equally dramatic.

The decision was denounced from nearly all directions as not being sufficiently protective of religious freedom and it was harshly condemned by prominent commentators for its reasoning and methodology. Moreover, unlike many objections to Supreme Court decisions, the protests against Smith quickly turned into action, as a broad coalition encompassing groups as diverse as the ACLU and the National Association of Evangelicals came together to seek legislative reform. In 1993, three years after Smith was decided, the Congress overwhelmingly passed the Religious Freedom Restoration Act (RFRA) to undo the Court’s decision and resurrect the compelling interest standard.