by Kevin Daley The Supreme Court’s conservative bloc released a short, little-noticed statement on Jan. 22 that portends far-reaching changes for religious liberty. The statement — which Justice Samuel Alito authored and Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh joined — criticized the 1990 Employment Division v. Smith decision, a landmark ruling that held laws interfering with religious exercise are constitutional provided that they apply to everyone and are neutrally enforced. “In Employment Division v. Smith the Court drastically cut back on the protection provided by the free exercise clause,” Alito wrote. “In this case, however, we have not been asked to revisit that decision.” In the understated parlance of the Supreme Court, it was a clarion call for litigants to bring cases challenging Smith. It was all the more remarkable in that four justices signed onto the statement, an uncommon occurrence for opinions of this nature. The late Justice Antonin Scalia authored the 5-4 Smith ruling. Outrage at the decision prompted passage of the 1993 Religious Freedom Restoration Act (RFRA), which requires courts to subject federal action that infringes on religious practice to the highest degree of scrutiny. More recently, something approaching an anti-Smith consensus has developed on the right. Most…
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