The history of the Supreme Court's First Amendment jurisprudence regarding the proper standard of protection for the free exercise of religion is complicated. In determining how the First Amendment speaks to situations in which generally applicable health, welfare, and safety laws incidentally or accidentally burden certain individuals' religious practices, the Court has vacillated between different standards and different extremes, overruling itself several times. Frustrated with Smith, Congress enacted the Religious Freedom Restoration Act (RFRA) to overrule the Supreme Court and reinstate what it apparently thought was the "compelling interest" test as set forth in Sherbert and Yoder. Still, enormous unanswered definitional ambiguities exist with respect to RFRA. Because a true compelling governmental interest test is so extreme that it invites a backlash akin to Smith, religious claimants should take advantage of the current definitional ambiguity in RFRA to steer its interpretation toward the balancing test applied in Sherbert and away from a true compelling governmental interest test.
Toward a RFRA That Works Nicholas Nugent
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