Religious Regulation and the Courts: Documenting the Effects of Smith and RFRA

Abstract

Following Employment Division v. Smith in 1990, critics charged that the Supreme Court overruled thirty years of religious Free Exer cise Clause jurisprudence. Whereas Sherbert v. Verner in 1963 posited that the state must have to infringe upon reli gious freedoms,1 the Smith ruling asserted that religious beliefs and ob ligations do not relieve an individual of the duty to follow neutral, generally applicable law. Whereas, Wisconsin v. Yoder in 1972, ar gued that only those interests of the highest order . . . can overbalance legitimate claims to the free exercise of religion, Smith acknowledged that neutral, generally applicable law might have the incidental ef fect of forbidding or requiring actions that are in conflict with reli gious beliefs.2 The Smith decision appeared to remove compelling state interest as the primary test for adjudicating free exercise claims. The outcry over the Smith decision was immediate and influential. Within weeks of the decision, a disparate alliance, including the Ameri can Civil Liberties Union, the American Jewish Congress, Americans