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Many of the Supreme Court’s most tragic failures to protect constitutional rights—cases like Plessy v. Ferguson, Buck v. Bell, and Korematsu v. United States—share a common approach: an almost insuperable judicial deference to the elected branches of government. In the modern era, this approach is often called “Thayerism,” after James Bradley Thayer, a nineteenth-century proponent of the notion that courts should not invalidate actions of the legislature as unconstitutional unless they were clearly irrational. Versions of Thayerism have been around for centuries, predating Thayer himself.

The Supreme Court took a decidedly Thayerian approach to the First Amendment in the first flag salute case, Minersville School District v. Gobitis. That approach was short-lived, as Gobitis was swiftly overruled in West Virginia State Board of Education v. Barnette. Rather than deferring to political actors, Barnette treated the Constitution as placing certain rights “beyond the reach of majorities” and establishing them as “legal principles” that must be “applied by the courts.” Barnette’s approach to rights—rejecting a Thayerian “duty of deference” for First Amendment rights—has largely triumphed, even in other individual rights contexts.

But a curious anomaly persists. Unlike in other areas of the law, the discredited Thayerian approach to the First Amendment from Gobitis was eventually adopted into the modern free exercise standard embraced by the Supreme Court in Employment Division v. Smith. As a result, many free exercise claims have been decided with precisely the kind of rational basis deference we long ago abandoned for other constitutional rights.

This Article examines the relationship between religious liberty claims and Thayerian judicial deference. With the Supreme Court poised to reconsider Smith, this focus on deference differs from the standard scholarly and judicial approach, which tends to emphasize the debate over religious exemptions. Focusing instead on deference shows how Smith is an outlier, out of step not only with prior religious liberty cases but also with our broader approach to the enforcement of constitutional rights. Likewise, when religious liberty is viewed through the lens of deference, it becomes clear that, even without overruling Smith, the Supreme Court has been moving away from Thayerian judicial deference across a wide range of religious liberty disputes over the past decade. These deference-rejecting decisions cast the Religion Clauses as the “the heart of our pluralistic society,” that help “foster a society in which people of all beliefs can live together in harmony.” Those high goals are only attainable if religious liberty consists of judicially enforceable rights, rather than occasions for deference to the majoritarian governments that the Bill of Rights is supposed to constrain.



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