ABSTRACT
Employment Division v. Smith was a watershed decision that reshaped free exercise jurisprudence. The Court claimed to be applying the past jurisprudence but the account offered of the previous decisions simply was not credible. Further, the new test offered in Smith seemed to require a different result in the very case in which it was announced. However, the Smith Court was correct to be critical of the past jurisprudence, which itself was inconsistent and unprincipled. Congress reacted to Smith by passing RFRA (which the Court struck down as applied to the states) and RLUIPA in an attempt to restore past protections, although Congress seemed not to appreciate how inconsistent those past protections had been.
