Fragmenting Free Exercise

One of the most significant questions in free exercise law is whether and when religious beliefs and practices should be granted exemptions from laws to which other citizens must comply.  During the 1960s and 1970s, the Supreme Court decided two cases involving religious exemptions in the modern regulatory state, Sherbert v. Verner, 374 U.S. 398 (1963) (denial of unemployment benefits for a worker who refused to work on her Sabbath), and Wisconsin v. Yoder, 406 U.S. 205 (1972) (mandatory school attendance for the Amish).  These two cases seemed to suggest that the Court would carefully scrutinize laws that failed to grant religious exemptions and would require the government to articulate a compelling interest to justify a lack of religious exemption.

In 1990, the Supreme Court decided Employment Division v. Smith.  The case involved a challenge to the denial of a religious exemption for the use of peyote by members of the Native American Church.  Justice Scalia's opinion for the Court concluded that neutral laws of general applicability need only pass rational basis scrutiny to survive constitutional challenge—a much lower standard than the one suggested in Sherbert v. Verner and Wisconsin v. Yoder. Under rational-basis review, the government almost always wins (and the challenged law is upheld as constitutional).

What do you think the proper standard should be when government is alleged to infringe upon religious rights?

Many commentators believe that the Smith decision altered the landscape of religious liberty, both in its direct effect on the Court's approach to the First Amendment's free exercise clause and with the flurry of activity that followed the Court's decision. Today, we will focus on Smith and three post-Smith developments: (1) the Religious Freedom Restoration Act (and the Court's subsequent narrowing of RFRA in City of Boerne v. Flores; (2) post-Smith interpretations of the federal free exercise clause; and (3) post-Smith responses at the state level.

Reading Assignment:

  • Employment Division v. Smith, 494 U.S. 872 (1990)

  • Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993)

  • City of Boerne v. Flores, 521 U.S. 507 (1997)

Optional Reading: