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18 Conn. Pub. Int. L.J. 1 (2018-2019)

handle is hein.journals/cpilj18 and id is 1 raw text is: Constitutional Intolerance to Religious Gerrymandering Jonathan J. Kim and Eugene Temchenko Can the government pass a law criminalizing consumption of alcohol everywhere except at bars, hotels, clubs, restaurants and private homes? In practice, the law would ban sacramental consumption of alcohol. Yet surprisingly, in many circuits this law would not offend the First Amendment. There is a four-way circuit split on how to treat explicit and implicit secular exemptions under Employment Division v. Smith and Church of the Lukumi Babalu Aye, Inc. v. Hialeah. Some circuits disregard all exemptions so long as there is no evidence of discriminatory intent. Other circuits apply strict scrutiny to every law that contains a single secular exemption. But application ofstrict scrutiny in free exercise context rarely results in a victory for the religious group. A series of cases significantly watered down strict scrutiny in the free exercise clause context, leaving religious individuals without a constitutional right to free exercise of religion. The purpose of this Article is to address these two related issues: first, when do exemptions warrant scrutiny; and second, when do laws fail scrutiny? The Article argues that a law warrants scrutiny when it exempts secular conduct that undermines the objective of the law to the same extent as a religious exemption would. A law fails scrutiny, in turn, when the compelling government interest and the harm to third-parties does not outweigh the harm the law causes to a religious individual. The right to Free Exercise deserves greater protection. It is a right by which people express a core part of their identities.

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