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Reason
Reason
Politics
Josh Blackman

Employment Division v. Smith Meets Pierson v. Post

There are two staples of every 1L curriculum. First, in Constitutional Law, Employment Division v. Smith drew a distinction between belief and actions. The Constitution squarely protects all religious beliefs, but those protections do not necessarily extend to actions. To use United States v. Reynolds as an example, a person can believe that polygamy is a religious mandate, but that belief does not override a law barring multiple spouses. Smith more-or-less followed this rule, holding that one could believe that peyote is part of a religious ritual, but that belief does not mandate an exemption from controlled substance laws. The second chestnut is Pierson v. Post. This case applied the rule of capture to a fox hunt. The first person to actually lay hands on a fox gains possession. It does not matter that a hunter accompanied by hounds was engaged in a lengthy, regal pursuit. That decision, from 1803, also reflected the rejection of the aristocratic fox hunt by the young-scrappy-and-hungry country.

What do these two cases have in common? Before today, I would have said the answer was nothing. But the doctrines merge!

The United Kingdom banned fox hunts. Now, fox hunters are asserting that their practice is a (religious) belief. I put religious in parentheses, because under English law, there is no requirement that a belief be religious to obtain protected status. But I think this question is in the same ballpark as religious belief.

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