Free Exercise of Religion
 
A.  Preliminary Hurdles

Under the Free Exercise Clause, for a challenger to seek protection under that clause, the challenger has the initial burden of proof to show that the challenger has a sincerely held religious belief or practice which has been burdened (either through direct or indirect coercion or through the imposition of penalties) by the government. For example, in Wisconsin v. Yoder the burden is the risk of criminal penalties for truancy. The government may defeat such a claim before reaching the merits of the claim in a number of different ways: (1) showing that the asserted religious belief is not sincerely held; (2) showing that the conduct at issue is not a religious practice; and (3) showing that no religious practice has been burdened.

B.  Pre-Smith

Prior to the Court’s decision in Employment Division v. Smith, based on a series of cases decided beginning in the 1960s and continuing through the 1980s (including Wisconsin v. Yoder), once the challenger had proven the necessary elements of a free exercise claim (showing that the government has burdened a sincerely-held religious belief), the burden shifted to the government to justify its refusal to grant an exemption to the religious practitioner. In that analysis, a statute that burdened religious freedom needed to be justified under the strict scrutiny standard of review. In that review, the issue for the Court was whether requiring the government to grant an exemption to the person bringing the free exercise claim would significantly undermine the government’s ability to protect a compelling objective. Using this test, in Yoder the Court found that the government could not show that allowing Amish students to end traditional public school education at age 14 would undermine the government's compelling interests.

C.  Employment Division v. Smith

In Smith, Justice Scalia's majority opinion reinterpreted the Court's previous case law. In ruling that the Free Exercise Clause did not require a religious exception to state drug laws, the Court held that the government was only required to provide a reasonable justification for its decision not to grant an exception from a neutral law of general applicability. Since Smith most free exercise claims are subjected to very limited review. If the claimant seeks an exemption from a neutral law of general applicability that prohibits the performance of an act that the practitioner engages in for religious reasons or requires the performance of an act that the challenger finds objectionable on religious grounds, the government may apply a neutral law of general applicability to the challenger if the government can show that it has a reasonable justification for its refusal to grant an exemption.

However, Smith avoided overturning prior cases in which laws were struck down as violative of the Free Exercise Clause using strict scrutiny by viewing those cases as falling within exceptions to the general rule. For example, Smith explained Wisconsin v. Yoder as a case in which the government was burdening a right protected by both the Free Exercise Clause and another constitutional right - the fundamental right of parents to direct the upbringing of their children. The implication of Smith's interpretation of Yoder is that in such hybrid rights cases, it is still the law that the government must satisfy strict scrutiny by showing that it has a compelling government interest and that it has no less restrictive alternative means to protect that interest.

D. Post-Smith Free Exercise Cases

The Supreme Court has never applied the hybrid rights theory in any subsequent free exercise case. As a result of uncertainties about whether the Court intended to create such an exception to the low level scrutiny approach adopted in Smith and the exact dimensions of such a hybrid rights exception, not all lower courts have recognized the hybrid rights exception.

While not applying the hybrid rights exception, the Supreme Court has applied strict scrutiny in a number of post-Smith free exercise cases by concluding that the challenged law was not a neutral law of general applicability. A law is not neutral if it discriminates against religion generally or among religions. A law is not generally applicable if it contains exceptions so that some people are not obligated to obey the law while others are bound by the law.