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![handle is hein.journals/nvljform7 and id is 1 raw text is:
A CONTINUED SIGN OF THE COURT'S
UNWILLINGNESS TO OVERRULE SMITH
By Gader Wren*
There is nothing talismanic about neutral laws of general applicability or
general criminal prohibitions, for laws neutral toward religion can coerce a
person to violate his religious conscience or intrude upon his religious duties
just as effectively as laws aimed at religion.
Justice Sandra Day O'Connor1
INTRODUCTION
Since its inception, the Supreme Court's holding in Employment Division
v. Smith has been attacked for diluting Free Exercise rights. In recent years, pe-
titioners have asked the Court to reconsider Smith's soundness.2 However, de-
spite these challenges to Smith's legitimacy, it has remained the law of the
land.3
On February 22, 2022, the Court granted certiorari on 303 Creative LLC v.
Elenis.4 Although Petitioner asked the Court to overrule Smith,5 the Court
granted certiorari to answer only a single question: [w]hether applying a pub-
lic-accommodation law to compel an artist to speak or stay silent violates the
Free Speech Clause of the First Amendment.6 This move suggests that Justices
Barrett and Kavanaugh remain hesitant to overrule Smith.
* JD, University of Nevada, Las Vegas - William S. Boyd School of Law and law clerk at
Racine Olson in Pocatello, Idaho.
1 Emp. Div., Dep't of Hum. Res. of Oregon v. Smith, 494 U.S. 872, 901 (1990) (O'Connor
J., concurring) (Joined by Justices Brennan, Marshall, and Blackmun, Justice O'Connor ar-
gued that the Smith test is inconsistent with precedent and history).
2 See Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021).
3 See id.
4 303 Creative LLC v. Elenis, SCOTUSblog, scotusblog.com/case-files/cases/303-creative-
llc-v-elenis/ (last visited Mar. 22, 2022).
5 See Petition for Writ of Certiorari at 23, 303 Creative LLC. v. Elenis, No. 21-476 (U.S.
May 26, 2022), scotusblog.com/case-files/cases/303-creative-llc-v-elenis/ (last visited Mar.
22, 2023) [hereinafter Petition].
6 303 Creative LLC v. Elenis, supra note 4.
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