75. When the Constitution Bends (and When It Hardens)

What the Free Exercise rollercoaster tells us about America today

Photo by Noah Holm on Unsplash

Teaching the Free Exercise Clause always feels a little like guiding people through a museum where the lighting keeps shifting. Bright, generous sunlight in one gallery. Harsh fluorescent glare in the next. A few rooms lit by a single flickering bulb. And hanging on the walls? A sequence of cases that reflect the country’s recurring anxiety about how to protect religious liberty in a pluralistic nation.

This week, we took that walk together, from Sherbert’s soft, warm glow to Smith’s sharp, cold rigidity, and into the complicated, often contradictory present. The Court seems torn between broad protection and firm categorical rules, but the deeper story isn’t just doctrinal. It’s cultural. It’s about what each era fears, and how those fears quietly reshape constitutional law.

The Era of Generosity: Sherbert and the Invention of Mandatory Exemptions

Our tour begins with Adele Sherbert, a Seventh-day Adventist who refused Saturday work and became the unlikely heroine of modern Free Exercise jurisprudence. When South Carolina denied her unemployment benefits, the Court stepped in and said the state couldn’t force her to choose between her faith and her livelihood.

Sherbert does something profound: it suggests that sometimes the government must bend, carving out space for religious practice even when a law wasn’t written with religion in mind. For a moment, that felt like a constitutional principle the Court would nurture.

The glow didn’t last.

The Long Retreat: A Slow Erosion Behind Bright Words

What followed Sherbert was a parade of cases that, one by one, quietly narrowed the promise of religious exemptions, even while pretending to apply strict scrutiny.

In United States v. Lee, the Amish employer still had to pay Social Security taxes despite deep religious objections. The tax system, the Court said, couldn’t survive exemptions. In Goldman, the Air Force could forbid an Orthodox Jewish officer from wearing his yarmulke indoors because military uniformity demanded deference. In Lyng, Native tribes lost access to sacred land because the government’s use of its own property (even if spiritually devastating) wasn’t “coercion.”

A strange pattern emerges: the Court speaks the language of Sherbert while hollowing out the substance. By the late 1980s, Sherbert’s test survives mostly in unemployment-benefit cases. Everywhere else, the Court is already retreating, quietly abandoning the balancing it once embraced.

Which brings us to the earthquake.

Smith: When the Court Stopped Whispering

In 1990, the Court stops pretending. In Employment Division v. Smith, Scalia declares that neutral, generally applicable laws do not violate the Free Exercise Clause, even if they hit religious practice head-on.

Two Native American Church members use peyote in worship. They’re fired. They lose unemployment benefits. And the Constitution, the Court says, has nothing to say about it.

Sherbert is confined to unemployment cases. Yoder becomes a “hybrid rights” anomaly. And free exercise becomes a shield against discrimination, not against burdens. The constitutional world shifts beneath everyone’s feet.

When Doctrine Meets the Culture Wars

Here’s where the story snaps into focus and where free exercise questions stop being theoretical and start appearing on the front page. School board fights. Foster-care contracts. Vaccine mandates. Zoning battles. Wedding-services cases.

What makes this moment so volatile is that both, those seeking exemptions and those resisting them, point to the old cases and claim continuity. But the real drivers are contemporary anxieties, and the Court is responding with a patchwork of new tools.

COVID and the Rise of Equal-Treatment Exemptions

In Tandon and the emergency-docket COVID cases, the Court holds that religious gatherings must be treated at least as well as any secular activity posing similar risks. If one secular comparator gets better treatment, strict scrutiny kicks in.

This isn’t Sherbert-style balancing. It’s an equality rule dressed up as neutrality.

Religious Foster Care & LGBTQ Rights

In Fulton, Catholic Social Services wins because Philadelphia’s rule contains an “individualized exemption.” But the deeper tension sits just beneath the surface: What happens when accommodating religious doctrine excludes LGBTQ families?

The Court sides with CSS but dances around the elephant in the room: Should Smith be overruled? Alito says yes. Barrett hesitates. Kavanaugh hovers. The majority stays silent. The question hangs in the air like smoke.

The Ministerial Exception: Religion’s Constitutional Safe Room

Meanwhile, in Hosanna-Tabor and Our Lady of Guadalupe, the Court builds a doctrinal fortress. When hiring or firing someone who performs religious functions, the Free Exercise and Establishment Clauses together create a constitutional immunity zone.

Here, Smith doesn’t even apply. This is the strongest form of religious autonomy the Court has recognized in decades. It’s a structural carve-out that protects religious organizations from government interference in their most intimate decisions.

Standing at the Crossroads

So where does this leave us? Right now, Free Exercise doctrine feels like standing at an intersection in shifting light. Smith is technically still the law, but it’s breathing shallowly. Everyone knows it’s fading even as no one wants to sign the paperwork.

Around it, the Court has quietly built an entirely different ecosystem: generous exemptions through equality principles in the COVID cases, structural autonomy walls in the ministerial exception cases, and a growing willingness to police secular comparators in ways the Sherbert Court never imagined.

And yet, despite all these maneuvers, the justices keep circling the same unresolved question: If Smith falls, what comes next? No one can quite agree. Some want the return of strict scrutiny. Some want a more nuanced standard. Some want to scrap the entire exemption model and start fresh. The result is a doctrine that feels simultaneously bold and hesitant, expanding at the edges while hollowing out at the center.

The arc from Sherbert to Lyng to Smith to Tandon isn’t just doctrinal evolution. It’s the story of a country whose religious landscape has transformed faster than its jurisprudence can keep up with. Each case marks a place where the Court responds not only to legal arguments but to the cultural currents swirling just outside the courthouse doors.

What Each Era Fears

If there’s one thread running through the last sixty years, it’s this: every era of Free Exercise doctrine reflects its anxieties.

The 1960s feared bureaucratic coldness and insisted on compassion. The 1980s feared an unworkable flood of exemptions. Smith feared judicial subjectivity and longed for crisp, bright lines. The COVID cases fear inconsistent treatment and fractured trust. The ministerial exception cases fear government intrusion into spiritual life.

And now? The Court fears itself—and the gravity of choosing the next standard.

We’re watching the doctrine stretch, strain, and occasionally snap under the weight of a country that has grown more diverse, more divided, more sensitive to inequality, and more suspicious of state power. Some days it bends with grace. Other days it stiffens and cracks. But always, the movement tells us something about the moment we’re in.

Free Exercise isn’t just an area of constitutional law. It’s America’s ongoing attempt to figure out how to live together when our deepest commitments collide with the machinery of government and with the commitments of our neighbors.