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24 Seton Hall L. Rev. 695 (1993-1994)
Government Accommodation of Religious-Based Conscientious Objection

handle is hein.journals/shlr24 and id is 719 raw text is: GOVERNMENT ACCOMMODATION OF
Ronald B. Flowers*
Religious-based objections to participating in or conforming
to a government program or requirement impacts upon many ar-
eas of law. Traditionally, the United States Supreme Court has ap-
plied the compelling state interest standard to determine
whether the government must respect these objections. Recently,
however, the Court abandoned this standard in favor of a new stan-
dard that will not permit religious-based objections whenever the
government seeks to enforce a law of general applicability. The
purpose of this paper is to survey government accommodation, or
lack thereof, of a person's religious beliefs when such beliefs con-
flict with general government requirements or expectations. To
begin with, however, a short history of the Supreme Court's analy-
sis in such cases is warranted.
Because most conscientious objection claims are asserted pur-
suant to the guarantees of the Free Exercise Clause, it is important
at the outset to review the major principles of free exercise juris-
prudence. Since the United States Supreme Court decided Sherbert
v. Verner' in 1963, courts have balanced the government's interest
in regulation against the religious exercise interests of an objecting
party. Rooted in this standard is the presumption that the religious
interest would outweigh the government's interest unless the gov-
ernment could show that the regulation satisfied a compelling in-
terest and that the government's interest could not be satisfied in a
less restrictive way than by burdening an objector's religious behav-
ior. As a result, religious activity could be restricted, but such re-
striction was the exception to the rule protecting religious
The Sherbert test2 made clear that [i] t is basic that no show-
* Professor of Religion, Texas Christian University.
374 U.S. 398 (1963) (holding that the Free Exercise Clause prevented a Sabba-
tarian from having to choose between following her religion and receiving state un-
employment compensation benefits).
2 The Sherbert test became the standard analytic tool for deciding free exercise


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