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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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