Employment Division v Smith may a bit much for advocates of unrestrained, unlimited religious freedom to discuss in this thread. It clearly does bring up a lot of emotion and was controversial even twenty-seven years ago when Scalia wrote the majority opinion - and remains so. My Scalia quotes were taken from the Legal Information Institute in the Cornell Law Review. Interestingly, the minority in the 6-3 decision were the liberal Justices - Harry Blackmun, William Brennan and Thurgood Marshall - who objected to Oregon's regulation of a religious practices of Native Americans. Also from that source, Scalia begins with:
This case requires us to decide whether the Free Exercise Clause of the First Amendment permits the State of Oregon to include religiously inspired peyote use within the reach of its general criminal prohibition on use of that drug, and thus permits the State to deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use.
As with all of Scalia's opinions, he cites innumerable decisions throughout. but his one line response (in paragraph 16) was:
Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now.
I highlighted the restraints Scalia enumerated, but what it came down to is SCOTUS said that "the honest application of the compelling state interest test in free exercise cases involving neutral laws would lead to anarchy and chaos". .
It's a good read if anyone is interested. Scalia always is. I did not research if any of his subsequent speeches addressed the issues in Smith.
I did not, however, read the majority opinion that held the subsequent Religious Freedom Restoration Act (RFRA) in 1993 as unconstitutional and do not know which Justices ruled in that decision.
I read a speech entitled "The Political (and Other) Safeguards of ReligiousFreedom" by Richard Gannett in the Cardozo Law Review. I found that it had been reprinted in the Notre Dame Law Review. I looked for Barrett's opinions on Religious freedoms specific to Smith in her writing since she clerked for Scalia, but stopped when I could not find it in a review that would have resulted in extensive digging. She has written or done numerous articles on precedent with a 2013 one entitled "Precedent and Jurisprudential Disagreement".
Referencing the second of the recent SCOTUS decisions on the state's obligation for the welfare and health of its citizens v religious practices in a pandemic that has killed more Americans in ten months than in six years of WWII in two theaters seemed enough to bring it to post.
Questioning Scalia's devotion to his Catholic faith in light of his writing of the majority decision never occurred to me. I'm sure it has been impugned by those who vehemently objected to the narrow constraints on the Free Exercise clause of the First Amendment. One can also imagine that Barrett will be expected to reverse Smith based on her faith by some.
It does seem to me that not treating large social gatherings in a pandemic similar to regulation on businesses is unjust and contrary to Smith even if temporary.
Now there is Fulton v the City of Philadelphia, in which arguments have been made Nov 4 and involves Catholic Social Services and determining adoptive parents. Some are hoping that Barrett and the rest of the conservative Justices will overturn the constraints in Smith - something the liberal Justices in 1993 addressed in their minority opinion. Her questioning has been speculated that she is not willing to do so. That would, of course, be irrespective of any state obligations in a pandemic, but would involve her views on SCOTUS's stare decisis and Smith's “rational basis” standard which a law is constitutional as long as there is a rational or legitimate reason for it.
What Scalia and the other Justices including the liberals about a temporary regulation in a pandemic rather than a state or federal law is probably worth consideration. Fulton v Philadelphia may be a narrow interpretation and not a reversal of Smith. It would be interesting if the arguments made that find a sympathetic ear in conservative Justices in 2020 were those of the liberal Justices in 1993.
Those were my sources and the articles I read prior to posting.