Conservatives have a landmark Scalia religion opinion in their sights

Key Points:

• The 1990 Supreme Court decision in Employment Division v. Smith, authored by Justice Antonin Scalia, reduced protections for religious exercise by allowing laws that incidentally burden religion to stand without showing a compelling governmental interest, sparking widespread criticism and legislative pushback including the Religious Freedom Restoration Act of 1993.
• Recent Supreme Court cases have shifted from minority religious groups to predominantly Christian challengers seeking religious exemptions, with the current conservative court increasingly siding with religious conservatives and showing willingness to reconsider or overturn Smith.
• In the upcoming case St. Mary Parish v. Roy, Catholic preschools in Colorado challenge a nondiscrimination requirement covering sexual orientation and gender identity to participate in a state preschool program, with the Supreme Court likely to revisit the Smith precedent and possibly expand religious exemptions.
• Justices Neil Gorsuch, Samuel Alito, and Clarence Thomas have publicly criticized the Smith decision as unworkable and expressed a desire to overturn it, while the Trump administration supports religious challengers arguing that Smith should not apply to government restrictions on public benefits based on religion.
• The Colorado state government defends the nondiscrimination policy as neutral and generally applicable without religious hostility, but religious liberty advocates argue that recent Supreme Court rulings increasingly favor religious exemptions, signaling a potential major shift in free exercise jurisprudence.