RELIGIOUS LIBERTY AND THE MORAL STRUCTURE OF CONSTITUTIONAL RIGHTS

Abstract

In 1990, in Department of Employment Services v. Smith,494 U.S. 872 (1990). the Supreme Court announced a new standard to govern Free Exercise claims. The Court held that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”Id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens concurring)). Prior to Smith, the Court had applied a test drawn from Sherbert v. Verner.374 U.S. 398 (1963). In Sherbert, the Court had indicated that religiously motivated persons were constitutionally exempt from otherwise valid laws unless the imposition of those laws was necessary to secure “a compelling state interest.”Id. at 403 (internal quotation marks omitted). Although the Court rejected almost every Free Exercise claim raised under Sherbert, the Sherbert standard was—in theory if not in practice—remarkably generous to religiously motivated persons, granting them a presumptive right to disobey laws that thwarted their religious commitments.