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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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