Religious exercise: how free?

Article Abstract:

The Supreme Court split three ways in interpreting the Free Exercise Clause in the 1990 case of Employment Division, Department of Human Resources v Smith. The majority opinion did not apply the compelling state interest test. Justice Sandra Day O'Connor wrote a separate opinion in which she decided that Oregon had demonstrated compelling state interest in restricting religious freedom. Justice Harry Blackmun dissented, stating that Oregon had not satisfied the test. In response to the decision, there have been calls for Congress to enact the 'compelling governmental interest' test.

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The Free Exercise Clause as a rule about rules

Article Abstract:

The Free Exercise Clause bans the making of laws that prohibit religious freedom. It is a rule about rules, not about specific cases. Forbidding all laws that could affect religion would cover almost any law. When the Free Exercise Clause is applied to specific cases, some principle such as the compelling state interest test is needed, but that test has no constitutional basis. The decision in Employment Division, Department of Human Resources v. Smith was correct, and any legislation enacted by Congress to overturn it would be declared unconstitutional.

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Introduction

Article Abstract:

The Anti-Federalist argument that the proposed federal government would grow at the expense of individual rights and state sovereignty does not seem to have been entirely wrong. The federal government has certainly become more intrusive in the lives of its citizens while state powers have been greatly limited.

Analysis, Federalism, History, Constitutional history

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