In some instances, the Supreme Court has held that, despite their restrictive effect upon speech or religion, rules of general applicability are exempt from oversight under the First Amendment. In Arcara v. Cloud Books, the Court ruled that the Free Speech Clause was not violated by a rule of general applicability even where it had a restrictive effect upon expressive activity. Arcara was an isolated decision that has enjoyed little influence in subsequent decisions involving free speech. On the other hand, in Employment Division v. Smith, the Court effectuated a major doctrinal revision to the Free Exercise Clause by ruling that the Clause was not violated by a neutral law of general applicability, even where it had a restrictive effect upon religious activity. The ruling in Smith significantly reduced the scope of constitutional protection accorded to religious conduct by abandoning the use of strict scrutiny to review the regulation of religious practices under neutral laws of general applicability. This granted the government considerably more leeway to regulate religious activities than previously existed. Under the Smith calculus, as long as a law is neutral toward religion, its application to religious conduct will be accepted as constitutional with little or no justification for the law.
Neutrality, however, is not to be determined simply from the text of a law. Apart from its text, the effect of a law in its actual operation may be strong evidence that the law is aimed at constitutionally protected activities. The discriminatory impact of a law may disprove its benign appearance. Moreover, legislative motive may also be relevant to the determination of neutrality. The legislative motivation underlying a law, as well as its impact in the real world, must be carefully examined to determine if the law is, in fact, neutral.
The notion that general rules should be exempt from oversight under the First Amendment, even when they are used to restrict religious or expressive activities, is questionable, particularly because it disregards the reality that general rules may place severe burdens on the free exercise of religion or freedom of speech. Arcara and especially Smith are problematic decisions that retract the scope of First Amendment protection afforded to expressive and religious activities and give constitutional immunity to general laws that restrict freedom of speech and the free exercise of religion. Notwithstanding those decisions, the Supreme Court’s treatment of rules of general applicability has wavered considerably, leaving a perplexing body of constitutional doctrine.
10 First Amendment Law Review 419 (2012)