Wednesday, July 28, 2021
The ruling will also therefore give the justices a clean shot at Employment Division v. Smith (1990) in which the late Justice Antonin Scalia wrote that there was no violation of free exercise of religion because the Oregon law was neutral. Under that holding “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”
In prior cases, there was ample evidence of a majority that would overturn Smith. There are now 5 or 6 justices who have indicated that they reject the premise and test in Smith.
Thus, we now have Masterpiece heading back toward the Court and a major ruling in the Tenth Circuit that is ready for such an appeal. The chances of a post-Masterpiece showdown now seems extremely high in the highest court.
Here is the case: 303Creative opinion