Justice Scalia Was Right: We’ve Gone Too Far in Protecting the Exercise of Religious Beliefs
Volume 89, Online
By Martha Swartz [PDF]

This Article explores whether Scalia’s reasoning in Employment Division v. Smith and the Court’s subsequent decision in City of Boerne v. Flores should be adopted by the Court, thus rejecting the heightened religious protections afforded by the Religious Freedom Restoration Act (RFRA) and the flurry of religious protection laws that were enacted both before and after the Court upheld the right of same-sex couples to marry in Obergefell v. Hodges. It goes on to discuss the potential implications RFRA protections might have on the individual rights of others. As a solution, it proposes a reversal of the burden of proof: neutrally enacted, generally applicable laws would be presumptively valid. It would be the religious plaintiff’s responsibility to demonstrate that the enactment of the law was motivated by antireligious bias and had no rational connection to the government’s legitimate interest.

Martha S. Swartz, J.D., is an attorney in private practice in Philadelphia, Pennsylvania, and an Adjunct Professor at Rutgers University School of Law-Camden.