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Vanderbilt Law Review

Article Title

Toward a RFRA That Works

Authors

Nicholas Nugent

First Page

1027

Abstract

The history of the Supreme Court's First Amendment jurisprudence regarding the proper standard of protection for the free exercise of religion is complicated. In determining how the First Amendment speaks to situations in which generally applicable health, welfare, and safety laws incidentally or accidentally burden certain individuals' religious practices, the Court has vacillated between different standards and different extremes, overruling itself several times. Early on, the Court held that, provided the government did not interfere deliberately with religion for religious reasons, an inadvertent interference with religious practice raised no Free xercise Clause problem,' "no matter how trivial the state's nonreligious objectives, and no matter how many alternative approaches were available to the state to pursue its objectives with less impact on religion."

That doctrine soon was overruled, and a series of cases from the 1960s through the '80s, known as the Sherbert line, or the Sherbert-Yoder line, established that even generally applicable health, welfare, and safety regulations could be struck down if their burden on religious practice, however accidental, did not meet certain constitutional requirements. The Sherbert line of cases boldly asserted that for a law of general applicability to bind religious objectors, the state must demonstrate a "compelling state interest."

Yet, the rhetoric of the Sherbert line notwithstanding, rather than employing a "compelling state interest" test or "strict scrutiny"- both names for the most demanding standard of judicial review-the Court in fact was applying an intermediate and more refined level of scrutiny. The Court balanced the state's regulatory interest against the burden imposed on the religious adherent's practices, accounting for (albeit subconsciously or implicitly) the availability of alternative means for both parties. As a result, later cases in the Sherbert line declined even to employ the language of "compelling state interest" or "strict scrutiny." As the Sherbert line progressed, the Court moved ever closer to the recognition that the appropriate approach to accidental interference cases was a simple balancing test.

But the earlier cases' invocation of the compelling interest test, despite the fact that another standard was in fact being applied, resulted in the Sherbert line ultimately being overruled in the case of Employment Division v. Smith. The Smith Court, taking Sherbert at its word, found that the compelling interest test was an impermissibly strict constitutional bar for the state to meet* should any law incidentally burden an individual's religious practice. Ignoring the fact that the Sherbert line had not in fact applied a true strict scrutiny standard, and mischaracterizing cases in which the religious objector had prevailed to avoid explicitly overruling prior cases, the Court held that accidental interferences with religion posed no Free Exercise problem and that the state was not required to meet strict scrutiny, or any level of scrutiny for that matter.

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