Justice Samuel Alito is anachronistically mistaken when he claims, in his Fulton v. Philadelphia concurrence, that the original meaning of the Free Exercise Clause of the First Amendment is a judicially enforceable right to exemption from generally applicable laws. The doctrines and practices of strict scrutiny, narrow tailoring, and compelling interests came into existence in the 1960s. Alito’s evidence for his originalist claims misreads his evidence and has extravagant implications. If judicially crafted exemptions are to be defended, this case must be made on nonoriginalist grounds.
Or so I argue in a new paper posted on SSRN.