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37 Washburn L.J. 105 (1997-1998)
Religious Freedom in the Nineties: Betwixt and between Flores and Smith

handle is hein.journals/wasbur37 and id is 135 raw text is: Religious Freedom in the Nineties: Betwixt and Between Flores and Smith John W. Whitehead* In 1990, the United States Supreme Court stunned the organized religious community when, without being asked to do so, it overturned three decades of established free exercise jurisprudence. In Employment Division, Oregon Department of Human Resources v. Smith,1 the Court upheld Oregon's denial of unemployment benefits for two Native American Church members who had been fired for their sacramental use of peyote. Prior to Smith, the Supreme Court had subjected laws or government actions affecting religion to the compelling state interest test.2 This meant that, in order to override a religious liberty claim, the State, e.g., the government, had to prove that its action advanced a compelling state interest. Moreover, even if the State proved its compelling interest, the State also was required to demonstrate that its means of regulation constituted the least restrictive means of accomplishing its interest. Likewise, if the State's objective could be served as well by granting an exemption to individuals whose religious beliefs were burdened by such state action, such an exemption was required to be given. Ignoring three decades of its own established free exercise jurisprudence, the Court concluded in Smith that its compelling state interest test need not be employed in the case of so-called generally applicable laws regulating what was deemed to be socially harmful conduct.3 Religiously neutral laws may bypass the test and need only be rationally related to a legitimate state interest. The Smith decision thus threatened the continued vitality of individual religious rights under the Bill of Rights by eliminating a pure religious liberty defense to generally applicable laws. Religious liberty would now be subjected to majoritarian rule, and individual religious freedom would be * Copyright ©1997 John W. Whitehead. President and Founder of The Rutherford Institute, an international non-profit organization dedicated to the defense of basic human rights. 1. 494 U.S. 872 (1990). 2. See, e.g., Hobbie v. Unemployment Appeals comm'n, 480 U.S. 136 (1987); Thomas v. Review Bd. of the Ind. Employment Security Div., 450 U.S. 707 (1981); Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Vemer, 374 U.S. 398 (1963). 3. Smith, 494 U.S. at 885.

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