The Supreme Court's decision in Employment Division v. Smith has been widely criticized for decimating the Free Exercise Clause and leaving free exercise rights vulnerable. Critics maintained that the Supreme Court's decision in Smith to shift protection of free exercise rights to primarily the political process would have devastating consequences for religious individuals. In Axson-Flynn v. Johnson, decided fifteen years after Smith, one of those consequences has become clear: a state university can constitutionally require an individual to swear as part of an acting program, even if swearing violates that individual's deeply held religious beliefs. This result of compelled swearing is striking considering that for most of America's history, swearing has actually been prohibited by law. This Note examines whether there is any principled argument for contending that there is still sufficient constitutional protection after Smith to avoid the result of allowing a state to require an individual to swear against his religious belief. The Note argues that there is not, and concludes that the only way to prevent the odd result of compelled swearing implicated in Axson-Flynn is to reinterpret or overrule Smith.
Bradley C. Johnson,
By Its Fruits Shall Ye Know; Axson-Flynn v. Johnson: More Rotted Fruit from Employment Division v. Smith,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol80/iss3/11