Toward a Fuller Understanding of Religious Exercise: Recognizing the Identity-Generative and Expressive Nature of Religious Devotion

Abstract

With the recent enactment of the Religious Freedom Restoration Act of 1993 (RFRA'),1 which essentially overruled the Supreme Court's decision in Employment Division, Department of Human Resources of Oregon v Smith,2 much attention has been focused on the appropriate level of scrutiny for evaluating Free Exercise Clause claims. Prior to the Smith decision, cases such as Sherbert v Verner3 and Wisconsin v Yoder4 seemed to make clear that laws adversely affecting religious practices were subject to a standard of strict judicial scrutiny, at least as they applied to the religious practices so affected. Smith, however, rejected the compelling state interest standard of Sherbert and Yoder for the vast majority of free exercise claims-those involving the application of a facially neutral law. In fact, under the Smith majority's formulation, such incidental infringements on religious liberty do not even give rise to a free exercise claim. The response to the Smith decision, particularly Justice Scalia's characterization of prior case law, has been overwhelmingly critical,5 with a few notable exceptions,6 and is epitomized by Congress's attempt to restore the pre-Smith case law through RFRA. Unfortunately, many advocates of RFRA and of a return to the pre-Smith compelling state interest approach are as guilty of