What Did Professor Barrett Think About Smith?

Published: Monday, June 22, 2026 at 1:00 pm

Justice Barrett's Stance on Landmark Religious Freedom Case Examined

A recent analysis delves into Justice Amy Coney Barrett's perspective on the pivotal 1990 Supreme Court decision, *Employment Division v. Smith*. This case significantly altered the landscape of religious freedom by holding that the Free Exercise Clause does not prevent the application of neutral, generally applicable laws to religious practices.

The *Smith* decision prompted Congress to enact the Religious Freedom Restoration Act (RFRA) three years later. RFRA aimed to reinstate a prior understanding where government actions burdening religious exercise required a compelling interest. However, RFRA itself was later deemed unconstitutional by the Supreme Court in *City of Boerne v. Flores* in 1997. The Court reasoned that Congress exceeded its authority under the Fourteenth Amendment by attempting to define constitutional requirements rather than remedying violations. Justice Antonin Scalia, who authored the *Smith* opinion, strongly defended his reasoning in *Flores*.

Professor Amy Coney Barrett, in a 2008 article published in the Notre Dame Law Review, discussed *Smith*, RFRA, and *Boerne*. While she has publicly addressed these landmark cases, her specific opinion on whether *Smith* was correctly decided remains unstated. The author notes that Barrett was not primarily a Free Exercise Clause scholar, which may explain this omission.

The analysis then turns to Justice Barrett's recent actions on the Supreme Court. In the 2021 case *Fulton v. City of Philadelphia*, three justices voted to overturn *Smith*. However, Justice Barrett, alongside Justice Brett Kavanaugh, did not join this effort. While Justice Barrett raised several questions that would need consideration if *Smith* were to be overruled, the author suggests that her decision was not driven by these procedural queries.

Instead, the prevailing view presented is that Justice Barrett likely aligns with Justice Scalia's defense of *Smith*. This perspective suggests her views were formed during her time as a law student when *Smith* and *Boerne* were decided, during her clerkship with Justice Scalia, or while on the Notre Dame Law faculty. The author posits that Justice Barrett's stance on *Smith* is likely well-established and unlikely to change.

BNN's Perspective: The examination of Justice Barrett's judicial philosophy regarding religious freedom, particularly her approach to *Employment Division v. Smith*, offers valuable insight into her judicial temperament. Her actions in *Fulton v. City of Philadelphia* suggest a cautious approach to overturning established precedent, even when faced with significant legal and societal questions. This measured stance, while potentially disappointing to some advocates, reflects a commitment to judicial stability and a thorough consideration of the implications of such a significant legal shift.

Tags: Employment Division v. Smith, RFRA, City of Boerne v. Flores, Free Exercise Clause, religious freedom, Justice Amy Coney Barrett, Justice Antonin Scalia, Fulton v. City of Philadelphia, Supreme Court, Notre Dame Law Review

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