Free Exercise Rights Are Expanding — and the Establishment Clause Is Cracking

The 1990 Smith decision curtailed religious liberty claims, but later rulings have expanded the Free Exercise Clause beyond its original scope

When the Supreme Court decided Employment Division v. Smith in 1990, it marked one of the sharpest contractions of the Free Exercise Clause in American history. Writing for the majority, Justice Antonin Scalia held that neutral, generally applicable laws could be enforced even if they incidentally burdened religious practice. The case involved two members of the Native American Church who were fired for using peyote in religious ceremonies and were subsequently denied unemployment benefits. Scalia’s opinion rejected the idea that individuals could demand religious exemptions from every law that affected them, warning that such an approach would make “the professed doctrines of religious belief superior to the law of the land.”

The Smith ruling was seen as a major weakening of the Free Exercise Clause. Before Smith, cases such as Sherbert v. Verner (1963) required the government to meet a strict scrutiny standard when burdening religious practice. Under Smith, that protection largely disappeared unless a law targeted religion directly. The political backlash was swift. In 1993, Congress passed the Religious Freedom Restoration Act (RFRA), restoring the strict scrutiny standard for federal laws and inspiring similar laws in many states.

In the decades after Smith, the Court began to chip away at its limits, often without explicitly overturning it. The turning point came with Trinity Lutheran Church of Columbia v. Comer (2017). The Court ruled that Missouri could not deny a church preschool access to a public playground grant solely because it was religious. This was a conceptual leap: exclusion from a public benefit was treated as an unconstitutional penalty on religion, even when the benefit had nothing to do with worship.

The expansion continued in Espinoza v. Montana Department of Revenue (2020) and Carson v. Makin (2022), where the Court struck down state policies that barred public funds from being used for religious education. Under these decisions, once a state creates a public benefit, it cannot exclude religious institutions from receiving it solely because they are religious.

This shift also reached into public employment. In Kennedy v. Bremerton School District (2022), the Court sided with a high school football coach disciplined for praying at midfield after games, holding that his free exercise rights were violated. The decision reframed the analysis, moving away from the concern over government endorsement of religion that had guided earlier Establishment Clause cases.

Legal scholars note that the Free Exercise Clause is now stronger than it was before Smith. In the pre-Smith era, the clause acted mainly as a shield against direct government interference. In its modern form, it can also act as a sword, requiring governments to include religious actors in funding, facilities, and programs. This not only restores the protections lost in 1990 but extends them into areas the Founders likely would not have treated as constitutionally mandated.

The result is a profound role reversal. What began as a decision narrowing religious liberty claims has, through decades of judicial and legislative response, evolved into a body of law that commands broader accommodation for religion than existed before Smith. Upcoming cases involving religious charter schools, state-funded chaplains, and faith-based service providers will determine whether this expansion continues or whether new limits will be drawn.