Cite as: 508 U. S. 520 (1993)
Opinion of Souter, J.
103 Harv. L. Rev. 1409 (1990).6 The curious absence of history from our free-exercise decisions creates a stark contrast with our cases under the Establishment Clause, where historical analysis has been so prominent.7
This is not the place to explore the history that a century of free-exercise opinions have overlooked, and it is enough to note that, when the opportunity to reexamine Smith presents itself, we may consider recent scholarship raising serious questions about the Smith rule's consonance with the original understanding and purpose of the Free Exercise Clause. See McConnell, The Origins and Historical Understanding of Free Exercise of Religion, supra; Durham, Religious Liberty and the Call of Conscience, 42 DePaul L. Rev. 71, 79-85 (1992); see also Office of Legal Policy, U. S. Dept. of Justice, Report to the Attorney General, Religious Liberty under the Free Exercise Clause 38-42 (1986) (predating Smith). There appears to be a strong argument from the
6 Reynolds denied the free-exercise claim of a Mormon convicted of polygamy, and Davis v. Beason upheld against a free-exercise challenge a law denying the right to vote or hold public office to members of organizations that practice or encourage polygamy. Exactly what the two cases took from the Free Exercise Clause's origins is unclear. The cases are open to the reading that the Clause sometimes protects religious conduct from enforcement of generally applicable laws, see supra, at 569 (citing cases); that the Clause never protects religious conduct from the enforcement of generally applicable laws, see Smith, 494 U. S., at 879; or that the Clause does not protect religious conduct at all, see Yoder, 406 U. S., at 247 (Douglas, J., dissenting in part); McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1488, and n. 404 (1990).
7 See Engel v. Vitale, 370 U. S. 421, 425-436 (1962); McGowan v. Maryland, 366 U. S. 420, 431-443 (1961); Everson v. Board of Ed. of Ewing, 330 U. S. 1, 8-16 (1947); see also Lee v. Weisman, 505 U. S. 577, 612-616, 622- 626 (1992) (Souter, J., concurring); Wallace v. Jaffree, 472 U. S. 38, 91-107 (1985) (Rehnquist, J., dissenting); School Dist. of Abington v. Schempp, 374 U. S. 203, 232-239 (1963) (Brennan, J., concurring); McGowan v. Maryland, supra, at 459-495 (Frankfurter, J., concurring); Everson, supra, at 31-43 (Rutledge, J., dissenting).
575
Page: Index Previous 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 NextLast modified: October 4, 2007