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The Rehnquist Court (1986–2005)

Freedom of Religion

Did the Rehnquist Court change Free Exercise Clause jurisprudence?

Yes, the Rehnquist Court changed Free Exercise Clause jurisprudence with its controversial 1990 decision Employment Division v. Smith. The Free Exercise Clause is designed to ensure that people have the right to practice their religious faith free from governmental interference. Traditionally, the U.S. Supreme Court since the time of the Warren Court had held that the government could not infringe upon a person’s free exercise rights unless the government met strict scrutiny—showing the government’s regulation advancing a compelling governmental interest in the least restrictive way possible. In the 1963 decision Sherbert v. Verner, the Court ruled that the state of South Carolina violated the free-exercise rights of Seventh Day Adventist Adele Sherbert by denying her unemployment compensation when she was terminated for refusing to work on Saturday, her Sabbath day. Sherbert v. Verner stated the law of the land in the free-exercise area until Employment Division v. Smith.

In Smith, two Native American drug counselors, Alfred Smith and Galen Black, were terminated from their jobs in Oregon and denied unemployment compensation for using a hallucinogenic drug (peyote) for religious reasons. The state asserted it had a clear interest in preventing illegal drug use. Smith and Black argued that the denial of the unemployment benefits infringed on their free-exercise rights to use peyote for religious reasons. Justice Antonin Scalia wrote that the Court had “never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”

Scalia ruled that the government does not violate the Free Exercise Clause when it acts pursuant to a generally applicable law that does not target religion but merely has an incidental effect. The decision lowered the standard of review in many Free Exercise Clause cases. In her concurring opinion, Justice Sandra Day O’Connor opined that Scalia’s opinion is “incompatible with our Nation’s fundamental commitment to individual religious liberty.”



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