Despite the relative prominence of religious expression in society' and its elevated status in constitutional law, the Supreme Court has struggled to articulate a consistent standard of review for neutral, generally applicable laws that indirectly burden religious expression. Since the late nineteenth century, the Court has vacillated between a highly deferential belief-action dichotomy and a more searching (albeit selectively applied) compelling interest test. Currently, the Court embraces a hybrid categorical-rational basis standard that relies in part upon a highly criticized assumption that the political process will be solicitous of minority religious practice. This retreat to rational basis has subordinated religious belief to political opinion by more rigorously protecting the latter. What's more, the current state of law has declawed the Free Exercise Clause, offering protection only in the "rare" case of a "law actually aimed at suppressing religious exercise."
Daniel J. Hay,
Baptizing O'Brien: Towards Intermediate Protection of Religiously Motivated Expressive Conduct,
68 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol68/iss1/5