The Court Has No Interest In Overruling Smith

This morning the Court granted cert in St. Mary Catholic Parish v. Roy. The petition presented three questions:

1. Whether proving a lack of general applicability under Employment Division v. Smith requires showing unfettered discretion or categorical exemptions for identical secular conduct.

2. Whether Carson v. Makin displaces the rule of Employment Division v. Smith only when the government explicitly excludes religious people and institutions.

3. Whether Employment Division v. Smith should be overruled.

The Court, however, only granted on Questions #1 and #2. This will likely be yet another repudiation of Colorado’s hostility to religious liberty. Has any other state lost so many cases in a single area of constitutional law?

Yet, the Court denied cert on the third question presented. This is the latest in a string of cert petitions that have asked the Court to overrule Smith. And in each case, the Court declines to go down that road.

It appears that Fulton was the closest we will get to overruling Smith. Justices Thomas, Alito, and Gorsuch were prepared to overrule Smith. But that only counts to three.

Justice Kavanaugh has intimated that in light of Roman Catholic Diocese and Tandon, there is no need to overrule Smith. He might be right about that at the Supreme Court, but the lower courts can still distort Smith to rule against religious liberty. Indeed, lower courts are somehow still relying on Lemon, if not by name, to find Establishment Clause violations.

What about Justice Barrett? I suspect she thinks Smith was correctly decided, or at least the decision was correct enough that it should stay in place. That is the received wisdom at Notre Dame Law School. Professor Rick Garnett, her close friend, former colleague, steadfastly defends Smith.

In September 2025, Liz Foley and Mark Pinkert wrote a lengthy op-ed in the Wall Street Journal about how lower court judges were resisting the Supreme Court. The piece had one side reference to Smith:

Although the court has shored up Free Exercise Clause rights over the past five years, it has yet to overrule Employment Division v. Smith (1990), a disastrous decision that gives government officials and courts far too much flexibility to burden religion.

From this single sentence, Garnett felt compelled to write a letter to the editor to defend Smith.

As Ms. Foley and Mr. Pinkert remind us, religious liberty is more vulnerable when government power expands. Those who cherish our “first freedom” should support and advocate policies and laws that respect religious institutions’ autonomy and believers’ consciences. But when it comes to exemptions from nondiscriminatory government action, the original meaning of the First and Fourteenth Amendments, and the better understanding of the judicial role in our democracy, point toward political solutions, not judicial micromanagement.

Lori Windham from the Becket Fund (counsel in St. Mary) wrote a sur-reply to the WSJ:

Prof. Richard Garnett is a stalwart friend of religious liberty, but he’s mistaken that judges would become micromanagers if the Supreme Court overturned Employment Division v. Smith (Letters, Sept. 16).

That 1990 decision was universally unpopular when Justice Antonin Scalia wrote it, and it remains so today. It’s why the federal government and more than half the states have passed legislation to ensure that when a law burdens religious practice, believers get their day in court. Instead of the “anarchy” that Justice Scalia and Prof. Garnett envisioned, this has yielded carefully considered judicial decisions in which religious claimants sometimes win and sometimes lose.

Between Garnett and the Becket Fund, Justice Barrett seems to agree with the former.

Litigants can and should keep preserving the question of whether Smith should be overruled, but I do not see a prospect to five, or even four votes.