Taming Strict Scrutiny

<p>Some members of the Roberts Court have signaled their willingness to reverse&nbsp;<i>Employment Division v. Smith</i>, a controversial but landmark free exercise ruling nearly 35 years ago. Scholars and judges have debated what, exactly, should replace&nbsp;<i>Smith</i>’s test for religious exemptions, which applies strict scrutiny only to laws that target religion for unfair discrimination. More than one Justice on the Court has shown openness to a new strict scrutiny regime. Such a regime might apply strict scrutiny more widely, to any substantial burdens on free exercise (as the Court did prior to&nbsp;<i>Smith</i>&nbsp;in cases like&nbsp;<i>Sherbert v. Verner</i>&nbsp;and&nbsp;<i>Wisconsin v. Yoder</i>). But any effort to defend or spell out this kind of proposal must rebut a growing skepticism on the Court and in legal scholarship about tiers of scrutiny and judicial balancing tests. This Article assembles and clarifies the two chief objections to tiers of scrutiny: its incompatibility with original meaning and its subjectivity for judges. It then seeks to redeem strict scrutiny as a mode of analysis for free exercise cases, and potentially for interpreting other civil liberties too. First, it shows that both objections apply equally to a rising alternative to strict scrutiny in the Roberts Court’s jurisprudence, namely a “history and tradition” or historical analog approach. And second, the Article defends a strict scrutiny regime that could replace&nbsp;<i>Smith</i>, by assembling features of the Court’s current strict scrutiny analysis under statutory exemptions law. Over time, these features have made strict scrutiny far more resilient against problems of illegitimacy or subjectivity than critics now suggest. Such analysis can incorporate a limited and tailored role for history and tradition. It remains the most promising and attractive option not only for replacing&nbsp;<i>Smith</i>, but perhaps also for interpreting several other constitutional rights.&nbsp;<i></i></p>