Duty-Bound: A Case for Free Exercise Exemptionism's Broad Protections of Religious Liberty

Date

2024

Authors

Minkey, Sara

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Worldwide access

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Abstract

In 1990, the United States Supreme Court revolutionized its interpretation of the Free Exercise Clause of the United States Constitution. For the nearly three and a half decades since, legal scholars have debated whether Employment Division v. Smith holds true to the Constitution. In 303 Creative v. Elenis (2023), the Court had the opportunity to reconsider Smith. Lorie Smith solely owns and operates 303 Creative, a Colorado-based website design business. Although she does not discriminate against customers based on their sexual orientation, she cannot create a website for a same-sex wedding in accordance with her deeply held religious beliefs. Ms. Smith challenged the Colorado Anti-Discrimination Act under the Free Exercise Clause and Free Speech Clause. The US Supreme Court only granted certiorari on the free speech question. The Court should have also heard the free exercise issue to answer unresolved questions from the Tenth Circuit’s decision, and the Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. 303 Creative could have been a ripe vessel for the overrule of Smith. Smith is inconsistent with all major constitutional interpretations and does not pass stare decisis review. It must be overruled. This thesis proposes a clear constitutional standard to evaluate free exercise claims that more appropriately reflects the Court’s free exercise precedent.

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Keywords

Free Exercise Clause, Employment Division v. Smith, Sherbert v. Verner, 303 Creative v. Elenis

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