Revisiting Smith: Stare Decisis and Free Exercise Doctrine.

Date22 March 2021
AuthorNestor, Branton J.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....

--U.S. Const, amend. I

INTRODUCTION I. AN OVERVIEW OF STARE DECISIS DOCTRINE A. The Contemporary Doctrine 1. The Type of Precedent 2. The Multifactor Balancing Test B. One Ecumenical Stare Decisis Consideration: A Precedent's Consistency with Related Decisions II. SMITH AND STARE DECISIS: CONSISTENCY WITH RELATED DECISIONS A. First Things: The Free Exercise Clause 1. Smith's Break with Precedent 2. Ongoing Tensions and Confusion B. The Other Half of the Religion Clauses: The Establishment Clause 1. Methodological Tensions 2. Substantive Tensions C. Reforming the Free Exercise Clause Doctrine 1. Judicial Consistency's Relevance to Reform 2. One Reform: Accounting for Text, History, and Tradition CONCLUSION INTRODUCTION

Breaking with prior precedent, the Supreme Court held in Employment Division v. Smith (1) that the Free Exercise Clause does not generally protect religiously motivated conduct from neutral laws of general applicability. (2) That decision has provoked extended debate over the years, (3) and even today it "remains controversial in many quarters." (4) But one question--until recently (5)--has received less attention: even if Smith was wrongly decided, does stare decisis counsel in favor of retaining it today? Wading into the unfolding debate, this Article suggests that one important stare decisis consideration--a precedent's consistency with related judicial decisions--presents some challenges for any attempt to defend Smith on stare decisis grounds. The most important of these challenges is that Smith's approach to the Free Exercise Clause is in deep tension with many aspects of the Supreme Court's broader Religion Clauses jurisprudence.

To explore this particular challenge, this Article proceeds in two parts. Part I sets the stage by summarizing the Supreme Court's modern approach to stare decisis, with particular focus on how a precedent's consistency with related judicial decisions is relevant to assessing that precedent's stare decisis weight. Part II then explains why Smith's holding and rationale are in deep tension with the Supreme Court's broader Religion Clauses jurisprudence. Part II.A first argues that Smith broke from prior Free Exercise Clause precedent, and that Smith has been undermined and muddled by subsequent free exercise precedent. Part II.B next argues that Smith is in tension with several lines of decision arising from the other half of the Religion Clauses--most importantly, the focus on text, history, and tradition that have long remained important and now seem dominant in contemporary Establishment Clause jurisprudence. Part II.C concludes by focusing on the doctrine of judicial consistency and offering some preliminary thoughts for why Smith's tensions with the Religion Clauses not only favor revisiting Smith, but also favor ensuring that Smith's replacement accounts for the text, history, and tradition of the Free Exercise Clause.

To be sure, this Article's focus on the tensions between Smith and the Court's Religion Clauses jurisprudence does not fully resolve Smith's stare decisis fate. After all, this Article generally assumes conventional stare decisis principles, only focuses on one potential stare decisis consideration, and only discusses that consideration as far as Religion Clauses precedent is concerned. But if this Article is right, it suggests a simple takeaway: Smith is in tension with many strains of Religion Clauses jurisprudence, and those tensions both undermine Smith's stare decisis weight and help point the way forward to where Free Exercise Clause doctrine should go from here.


    The doctrine of stare decisis guides the judiciary in determining whether to overturn a settled decision. (6) Rooted in the "judicial power" vested by Article III, (7) the doctrine of stare decisis "reflects respect for the accumulated wisdom of judges who have previously tried to solve the same problem." (8) Over the years, the Supreme Court's view of that accumulated wisdom has changed, (9) and the precise role of stare decisis in our constitutional tradition remains deeply contested even today. (10) To some, stare decisis is a question of judicial policy, calling judges to weigh the legal merits and the practical consequences of overturning a settled rule. (11) To others, stare decisis is ultimately a question of epistemic humility, calling judges to consider the accumulated wisdom of the past but requiring them to subordinate that wisdom to the clear declarations of the written law. (12) At least as it currently stands, the Supreme Court's prevailing approach is decidedly one of judicial policy and weighs several interrelated considerations in an effort to strike an appropriate balance between reaching the right legal result and safeguarding important rule-of-law values such as consistency, predictability, and judicial restraint. (13) Within this prevailing multifactor framework, one important consideration--and a consideration that is embraced by most stare decisis theories today, whether they are grounded in policy or humility--is whether a precedent is consistent with related judicial decisions. In order to better contextualize this Article's explanation for why this consideration counsels against retaining Smith, this first Part briefly summarizes the Supreme Court's prevailing stare decisis doctrine and explains why a precedent's consistency with related judicial decisions is relevant for stare decisis purposes.

    1. The Contemporary Doctrine

      The Supreme Court's contemporary stare decisis doctrine is not an "inexorable command." (14) Instead, it is the "preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." (15) As far as this Article's consideration of Smith's stare decisis value is concerned, two features of this contemporary doctrine are most relevant--and so are briefly summarized (without endorsement or critique).

      1. The Type of Precedent

        The first feature of contemporary stare decisis doctrine that is most relevant for considering Smith's stare decisis value is the Supreme Court's practice of generally affording different stare decisis weights to different types of precedents. (16) Under this prevailing approach, the Supreme Court generally gives relatively weaker weight to constitutional decisions, (17) at least when the political branches cannot adequately respond to those decisions, or when those decisions reflect a narrower construction of a constitutional right than the Court would adopt today. (18) In doing so, the Supreme Court's more flexible treatment of its constitutional precedent might be viewed as resting on two general rationales. The first rationale-explicit in the case law--focuses on the extent to which erroneous constitutional decisions are generally more difficult for the political branches to reverse than erroneous statutory (or common law) decisions. (19) The second rationale--perhaps implicit in the "one-way ratchet theory" of contemporary jurisprudence--may be viewed as focusing on the normative and institutional importance of the judiciary's role as a counter-majoritarian protector of individual rights. (20) Indeed, placing these two rationales together--the first explicit, the second implicit--may provide one explanation for both the general rule and the most important caveats, as well as the way in which they have played out in individual cases. Whatever the merits of this approach (or these rationales), this reduced stare decisis weight for decisions that adopt a narrower interpretation of a constitutional right remains relevant for any consideration of Smith's stare decisis value--but one which is ultimately left aside here, given this Article's narrow focus on Smith's precedential consistency with Religion Clauses jurisprudence.

      2. The Multifactor Balancing Test

        The second feature of contemporary stare decisis doctrine that is relevant for considering Smith's stare decisis value is the Supreme Court's use of a multifactor balancing test in deciding whether to overrule past decisions (21)--a multifactor balancing test that might be explained primarily as a creature of policy, (22) perhaps one that currently reflects the liquidated meaning of Article Ill's "judicial power." (23) Notwithstanding variations in which factors are employed (or how they are weighed against each other), (24) the Supreme Court has identified several factors that may be most relevant, which include, inter alia: (1) the quality of the decision's reasoning; (2) the workability of the decision's rule; (3) factual developments since the decision was handed down; (4) reliance on the decision; and (5) the decision's consistency and coherence with previous or subsequent judicial decisions. (25) As Justice Kavanaugh recently explained in his partial concurrence in Ramos, these factors tend to fold into several broad, shared considerations--in his view, for example, whether the precedent was egregiously wrong, has caused significant jurisprudential or real-world consequences, and has induced significant reliance interests--which reflect the extent to which the traditional stare decisis considerations are interrelated and motivated by a shared set of functional and doctrinal underpinnings. (26)

    2. One Ecumenical Stare Decisis Consideration: A Precedent's Consistency with Related Decisions

      Within this multifactorial framework, one important consideration--and the consideration that this Article focuses upon--is a precedent's consistency with related decisions. (27) That consideration, which focuses on a precedent's consistency with both previous and subsequent judicial decisions, (28) has long remained an important part of the Supreme...

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