Volume 75, Number 4

October 2000

The Devil Is in the Details: Neutral, Generally Applicable Laws and Exceptions from Smith

Carol M. Kaplan

In the wake of the Supreme Court’s landmark decision in Employment Division v. Smith, which overturned settled principles of free exercise jurisprudence, confusion abounds in the lower courts as to the reach and limitations of the Court’s new test for determining the validity of free exercise claims. In this Note, Carol Kaplan examines the doctrinal reasoning and the substantive outcomes of lower court cases. She finds that while some of the inconsistencies are attributable to an absence of details in Smith, which sketched the bare contours of a new test without stepping through its application, other decisions resist the implications of Smith, and carve out such wide exceptions from its rule as to render it almost redundant. To address this problem, Kaplan first discusses the policy and jurisprudential goals that underlie the Smith decision. She then proposes a doctrinal model for the Smith test that furthers those goals by articulating te steps of the neutral, generally applicable analysis and delineating the boundaries of the exceptions to Smith. Kaplan concludes that Smith serves a bifurcated function that, on the one hand, seeks to ensure parity in the civil obligations of religious and secular citizens, while on the other, offers a tool for rooting out instances of legislative discrimination against religion and mandates that judges apply strict scrutiny to decisions by unelected administrative officials that impact upon the daily lives of all citizens.