Law Commons^™

Why The Ministerial Exception Is Consistent With Smith—And Why It Makes Sense, William A. Galston

San Diego Law Review

This conference puts on the table two linked questions: Can Hosanna-Tabor be reconciled with Employment Division v. Smith and, if so, on what basis? Let me say straightway that I have at most an amateur’s understanding of constitutional law and jurisprudence. I bring to our questions some intuitions about the best framework for thinking about them, and whatever light my home discipline of political theory can shed on them. I have also benefitted enormously from Christopher Lund’s splendid law review article on the topic of this conference.

Free Exercise By Moonlight, Marc O. Degirolami

San Diego Law Review

How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.

1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.

2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.

3. Hosanna-Tabor has shown itself to be feeble. It has …