Justice Barrett’s concurring opinion — joined by Justices Kavanaugh and Breyer in a show of “solidarity” from both sides of the Court — comes down to the issue that if Smith is overturned, 30 years of federal court cases upholding laws and ordinances “incidentally burdening” religious practices will all be up for being re-litigated. Federal courts will be inundated with “religious freedom” challenges, with the Court divided on how new cases seeking to re-litigate settled issues should be resolved. She preferred to put off the question of what to do about Smith to another day.

But conservatives recognize that this is the front-line of the cultural battle being fought in the courts and at the ballot box. This is a clash between a fundamental right provided for by the Founders, and “civil rights” being extended by political processes to various groups who claim an entitlement to be treated in ways that don’t offend them.

I think we should call it what it is — the right to be free from conduct by others that makes me feel bad about myself. I don’t remember studying that in Con Law, but maybe I was sick that day. //

In the same way that the cultural battle over Roe was guaranteed to continue as a result of the “wheeling-and-dealing” with votes behind the scenes in Casey, it appears that the cultural battle over religious liberty grounds will continue through “wheeling and dealing” behind the scenes over Smith. It will only end when Kavanaugh or Barrett takes a stand and decide the question at the center of the debate.