Document Type

Article

Publication Date

1-1-2012

Abstract

In the 1990 case of Employment Division v. Smith, a sharply divided Supreme Court abandoned the routine application of strict scrutiny when considering Free Exercise Clause claims seeking exemption from generally applicable legal duties or prohibitions. The Court returned to an older view of the Free Exercise Clause as protecting believers only from government acts that were aimed specifically at beliefs, and that grew out of hostility to the religion rather than a desire to further legitimate secular goals.

Reaction to Smith was largely negative, and legislative and state court responses followed, seeking to restore strict scrutiny as the appropriate standard when a free exercise exemption was denied. Smith was seen as an unfortunate decision reflecting insensitivity to the significance of the free exercise right. This article explores the possibility that Smith may have been less the result of that insensitivity than it was a response to the vast expansion of the concept of religion in constitutional law since the Court's first free exercise decisions employing strict scrutiny. This expansion made the application of strict scrutiny, at least as it is normally understood, wildly impractical.

At the same time, Smith seems to be an overreaction to the impracticability of applying a strong version of strict scrutiny to free exercise claims in a culture in which religion is defined in an extremely broad way. This article will suggest that courts should respond to the expansion of the scope of religion in recent decades by substituting the concept of conscience for a traditional or social science-based definition of religion. But this will require something less rigorous than strict scrutiny to be applied when the Free Exercise Clause is involved. This article suggests that applying a principle of proportionality in testing the refusal to grant an exemption on free exercise grounds is preferable to either the low-level scrutiny of Smith or the strong version of strict scrutiny enunciated (if not actively applied) in earlier decades.

Part I will briefly discuss the Supreme Court's treatment of free exercise cases since the late nineteenth century. Part II will discuss the Court's attempts to address the question of what qualifies as a religion for purposes of statutory or constitutional analysis, and how the Court's answer to that question complicated its commitment to the application of strict scrutiny to free exercise claims. Finally, Part III will suggest an approach to free exercise exemption that recognizes the expansive contemporary understanding of religious belief, and avoids both an unrealistic strict scrutiny approach and the low-level minimal scrutiny called for in Smith.