Christopher Wolfe’s recent article in Public Discourse argues that Employment Division v. Smith should be upheld by the Supreme Court, despite a recent decision that questioned Smith’s endurance. In 1990, the Supreme Court ruled in Smith that generally applicable laws that incidentally burden religious practices do not violate the Free Exercise Clause. Wolfe agrees with the Smith ruling, claiming it is consistent with an “originalist” interpretation of the Constitution. He points to Justice Antonin Scalia’s key argument in his Smith opinion: the Free Exercise Clause’s original meaning required no more than prohibiting laws that intentionally target religious practices as such.

But Wolfe’s argument rests on two flaws. First, he argues that Smith’s alternative (the Sherbert test) violates the separation of powers principle by turning judges into legislators. Second, he argues, contrary to Justice Samuel Alito in his Fulton concurrence, that under the original meaning of the Free Exercise Clause judges cannot grant exemptions from otherwise generally applicable laws. Both these claims suffer from an inadequate understanding of what judgment requires.

Judgment As Balancing Interests

Wolfe claims that the Sherbert test turns judges into legislators. This test requires judges to balance competing interests and then decide whether the state’s interest is “compelling” enough to burden someone’s religious exercise. Wolfe says such balancing is not properly a judicial task because it entails “a flat-out policy judgment, and that is a legislative task.” He cites Federalist 78’s famous observation that the Court is to have “neither force nor will but merely judgment.” According to Wolfe, balancing interests is an act of will rather than judgment.

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But is balancing interests strictly a matter of legislative political decision-making? Does it necessitate the exercise of will? On the contrary, balancing interests is at the heart of Article III judgment. True judgment involves deliberating and weighing competing principles. As Chief Justice Marshall wrote in Marbury v. Madison, “It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.” Judges must evaluate the relevant laws in particular cases in order to determine which one applies and therefore should be followed. When laws conflict, the judge must weigh the merits of each to come to a decision.

Marshall elaborates on Federalist 78, which emphasized the need for judges to uphold the Constitution—the supreme law of the land—above all other statutes. Hamilton notes that the judgment required to weigh competing laws may be used even when the Constitution has not been directly offended. Perhaps even more incisive judgment is required when “the ill humours of society” offend the spirit of the law.

Hamilton argues that the judicial power includes “mitigating the severity and confining the operation of such laws” that offend society. This is almost an explicit endorsement of a balancing scheme. To mitigate the severity of a law, judges must weigh two competing interests: that of the state that has enacted the law for some legitimate purpose, and that of the individual upon whom the law has been too severe.

True judicial power always requires more than a mechanical application of law to particular circumstances; it requires interpretation and judgment. This includes judging which law or which interest is to be preferred in a particular case. This is the essence of the Sherbert test, a legitimate articulation of judicial power that requires judges to weigh competing religious and state interests.

Judges must evaluate the relevant laws in particular cases in order to determine which one applies and therefore should be followed. When laws conflict, the judge must weigh the merits of each to come to a decision.


Granting Exemptions to the Injured

Marbury famously elaborated on the judicial power that is invoked in Article III and outlined in Federalist 78. Marbury also established the importance of providing a judicially wrought remedy to injured parties. The balancing act required by Sherbert—determining whether a religious exemption to the law should be given, and conversely whether the state’s interest in denying an exemption is “compelling”—is tantamount to providing that remedy for the religious individual. If an individual’s right to free exercise has been violated, what better remedy than to allow for an exemption from the offending law?

Unlike Smith, the judgment required by Sherbert might be said to “mitigate the severity” of the offending law for the religious individual. Indeed, if in a particular case a law violates the spirit of the Free Exercise Clause, the Court may intervene. This is a remedial act. To grant an exemption after weighing competing interests is at the heart of the judicial power as articulated by Federalist 78 and reaffirmed in Marbury.

A Truer Originalism

Wolfe’s essay also criticizes Alito’s originalism in his concurring opinion in Fulton, characterizing Alito’s originalism as “inadequate.” Wolfe’s argument is premised on the claim that Smith rendered the proper original meaning of this clause; but Wolfe never reveals what that original meaning is. At most, we are told that “the only plausible meaning is that it prohibits acts that directly, rather than incidentally, impinge on religious practices.” But is this the original meaning of the amendment? Alito persuasively argues otherwise and shows the inadequacy of Scalia’s account in Smith.

In his Fulton concurrence, Alito first considers the “normal and ordinary meaning” of the Free Exercise Clause, a consideration he contends Scalia did not undertake in Smith. Instead, Scalia defended only what he termed a “permissible” reading of the Free Exercise Clause; Scalia did not claim to invoke the original or ordinary meaning. Alito highlights this inconsistency: whereas Scalia would later claim that determination of the ordinary meaning of statutes was essential to his originalist jurisprudence, here he neglects such a searching inquiry in Smith. By contrast, Alito sets out to determine the ordinary meaning of the phrase.

Taking each of the terms from the clause in turn, Alito concludes that the ordinary meaning of “prohibiting the free exercise of religion” was “forbidding or hindering unrestrained religious practices or worship.” Wolfe calls this judgment “absurd,” but Alito’s judgment comes from a commitment to the very principles that Scalia (and Wolfe) embrace: deriving legal meaning from the plain meaning of the text.

In defense of this interpretation, Alito cites Scalia’s majority opinion in District of Columbia v. Heller. There, as Alito does in Fulton, Scalia mines the writings contemporaneous with the ratification of the amendment in question. By perusing dictionaries and publications from that time, Scalia deduces the definitive and original meaning of the Second Amendment.

But that is not all. Scalia further acknowledges in Heller that there was an “idiomatic meaning” to “bear arms” at the time of the amendment’s ratification that was significantly different from its plain meaning. While the right to “bear arms” normally referred to a right to carry a weapon, Scalia discovers an idiomatic meaning of the phrase, namely “to wage war.” This attention to historical meaning is the type of “special meaning” investigation that Alito follows but of which Wolfe is so critical.

Scalia rightly acknowledged the enormous power that the Sherbert test required judges to exercise, but he was wrong to conclude it was a power inappropriate for the Court. Judges should not abdicate their responsibility simply because it is difficult.


Alito concludes that the plain meaning of the Free Exercise Clause excludes the Smith ruling, and he buttresses this conclusion with his investigation into the clause’s history. Wolfe criticizes Alito’s linguistic investigation as inconsistent with “the originalism of the Constitution” but ignores the fact that Alito relies upon the very method employed by Scalia in Heller.

Reclaiming Judgment in Originalism

The Smith decision substitutes the Court’s constitutionally granted power for a mechanistic function that involves little judgment. Determining whether a law specifically targets a religion only requires proficient English, not the legal prowess of a judge. Further, as Scalia himself laments, the Smith test only guarantees protection of religious belief, leaving protection of religious exercises up to the discretion of the legislature. Scalia’s “permissible” reading of the text in fact contradicts the very words of the Free Exercise Clause. Scalia rightly acknowledged the enormous power that the Sherbert test required judges to exercise, but he was wrong to conclude it was a power inappropriate for the Court. Judges should not abdicate their responsibility simply because it is difficult.

Fulton placed the Smith precedent on uncertain ground. Indeed, had the opportunity to reconsider Smith been affirmed by a few more justices (Justices Alito, Thomas, and Gorsuch all argued it should be reconsidered and overturned, but Barrett, Breyer, and Kavanaugh argued it was not appropriate in that particular case), the Smith precedent might have been gone for good.

Wolfe argues that Smith, however regrettable its consequences, is consistent with the original meaning of the First Amendment. Alito’s Fulton concurrence, however, provides a more robust explanation of why Smith is ultimately inconsistent. Under the “ordinary meaning” of the phrase “free exercise,” Sherbert surpasses Smith, since the Sherbert test ensures that individuals will be free to exercise their religion, while Smith ensures only freedom of belief.

To say that the Supreme Court exercises “mere judgment” belies the gravity of its power and the weight of its opinions. Judgment requires more than a mechanical application of the law. It requires, as Sherbert recognized but Smith ignored, that judges determine whether a state’s particular interest is more or less compelling than an individual’s particular right. This is not a policy consideration; it is a matter of protecting individual rights and maintaining the rule of law through judgment. That is the essence of the American Supreme Court’s judicial power.

As Wolfe wrote, “wishing” that the original meaning of the Free Exercise Clause was more amenable to the judicial protection of religious rights does not make it so. But wishing that judgment involves no more than the reflexive application of law does not make it so, either. Free exercise jurisprudence would be better off if Justice Scalia had consistently applied his own originalist principles in Smith rather than seeking a judgment-free method of interpreting this fundamental constitutional right.