Supreme Court Takes Up St. Mary Catholic Parish Case Without Overruling Smith Precedent

The U.S. Supreme Court has granted certiorari in St. Mary Catholic Parish v. Roy, a case that tests the boundaries of religious liberty under Employment Division v. Smith (1990). The petition raised three key questions, but the Court agreed to hear only the first two:

• Whether proving a lack of general applicability under Employment Division v. Smith requires demonstrating either unfettered discretion or categorical exemptions for identical secular conduct.
• Whether Carson v. Makin (2022) displaces the rule of Employment Division v. Smith only when the government explicitly excludes religious people and institutions.

Notably, the Court denied review on the third question—whether Employment Division v. Smith should be overruled. This refusal continues a pattern: despite repeated petitions, the Court has declined to revisit Smith directly. The closest it came was Fulton v. City of Philadelphia (2021), where Justices Thomas, Alito, and Gorsuch signaled a willingness to overrule Smith, but the majority did not follow suit.

Key Takeaways from the Court’s Stance on Smith

Justice Kavanaugh has argued that recent rulings such as Roman Catholic Diocese of Brooklyn v. Cuomo (2020) and Tandon v. Newsom (2021) have already weakened the need to overturn Smith. Meanwhile, Justice Barrett is widely believed to support upholding Smith, aligning with the prevailing view at Notre Dame Law School, where her close colleague and mentor, Professor Rick Garnett, has long defended the precedent.

Lower Courts Still Misapplying Smith and Lemon

Despite the Supreme Court’s efforts to strengthen religious liberty protections, lower courts continue to distort Employment Division v. Smith to rule against religious claims. Some judges still rely on the discredited Lemon Test—even if not by name—to find violations of the Establishment Clause.

Academic and Legal Responses to Smith’s Defense

In September 2025, legal scholars Liz Foley and Mark Pinkert argued in a Wall Street Journal op-ed that lower courts resist Supreme Court guidance on religious liberty. Their piece included a single sentence criticizing Employment Division v. Smith as a "disastrous decision" that grants excessive flexibility to government officials. This prompted Professor Garnett to defend Smith in a letter to the editor, reiterating his longstanding position that judicial micromanagement is not the solution.

"Although the court has shored up Free Exercise Clause rights over the past five years, it has yet to overrule Employment Division v. Smith (1990), a disastrous decision that gives government officials and courts far too much flexibility to burden religion." — Liz Foley and Mark Pinkert, Wall Street Journal, September 2025

In response, Lori Windham, senior counsel at the Becket Fund for Religious Liberty (and counsel for St. Mary Catholic Parish), argued that overturning Smith would not lead to judicial micromanagement:

"Prof. Richard Garnett is a stalwart friend of religious liberty, but he's mistaken that judges would become micromanagers if the Supreme Court overturned Employment Division v. Smith."

What’s Next for Religious Liberty Cases?

While the Supreme Court’s refusal to overrule Smith may disappoint advocates of broader religious exemptions, the Court’s selective review in St. Mary Catholic Parish v. Roy suggests it remains focused on refining—not dismantling—the precedent. The case will likely test whether states like Colorado can continue enforcing neutral laws that burden religious practices without adequate justification.