Fulton v. City of Philadelphia is about four years old. Yet, the Court seems no closer to deciding whether to overrule Employment Division v. Smith. Of course, three Justices were ready to do so in Fulton. But Justices Barrett and Kavanaugh had some questions about what would replace Smith. I honestly can't even remember what those questions were. And I'm not sure how much they even matter. I think those questions were mostly filler--Barrett and Kavanaugh had to say something because they were unwilling to overrule Smith. If those questions were really so important, there should have been some subsequent writings to address the point. There haven't been. Indeed Mahmoud went out of its way to avoid talking about Smith. I suspect that Barrett and Kavanaugh are content with Tandon, and now Mahmoud, which make it very unlikely that Smith will need to be revisited.
But, a lot of people still care about Smith. Religious liberty groups bring a steady stream of "Overrule Smith" cert petitions. So far, they've been denied. Sooner or later one of these cases may get a fourth vote for cert. And there is some hard work ahead for the Court.
Here, I will sketch three significant questions that would come after overruling Smith. Each of these questions is premised on a completely predictable outcome: once people realize that the Free Exercise Clause allows them to obtain exemptions from neutral laws, they will suddenly discover that their free exercise of religion is being substantially burdened.
