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Establishing a general framework for deciding whether a religious belief can trump general laws and policies has been a challenge for the Supreme Court. In the 1960s and 1970s, the court decided two cases in which it laid out a general test for deciding similar cases in the future. In both
Sherbert v. Verner , a case dealing with unemployment compensation, and
Wisconsin v. Yoder , which dealt with the right of Amish parents to homeschool their children, the court said that for a law to be allowed to limit or burden a religious practice, the government must meet two criteria.
Sherbert v. Verner , 374 U.S. 398 (1963);
Wisconsin v. Yoder , 406 U.S. 205 (1972). It must demonstrate both that it had a “compelling governmental interest” in limiting that practice and that the restriction was “narrowly tailored.” In other words, it must show there was a very good reason for the law in question and that the law was the only feasible way of achieving that goal. This standard became known as the
Sherbert test . Since the burden of proof in these cases was on the government, the Supreme Court made it very difficult for the federal and state governments to enforce laws against individuals that would infringe upon their religious beliefs.
In 1990, the Supreme Court made a controversial decision substantially narrowing the Sherbert test in
Employment Division v. Smith , more popularly known as “the peyote case.”
Employment Division, Department of Human Resources of Oregon v. Smith , 494 U.S. 872 (1990). This case involved two men who were members of the Native American Church, a religious organization that uses the hallucinogenic peyote plant as part of its sacraments. After being arrested for possession of peyote, the two men were fired from their jobs as counselors at a private drug rehabilitation clinic. When they applied for unemployment benefits, the state refused to pay on the basis that they had been dismissed for work-related reasons. The men appealed the denial of benefits and were initially successful, since the state courts applied the Sherbert test and found that the denial of unemployment benefits burdened their religious beliefs. However, the Supreme Court ruled in a 6–3 decision that the “compelling governmental interest” standard should not apply; instead, so long as the law was not designed to target a person’s religious beliefs in particular, it was not up to the courts to decide that those beliefs were more important than the law in question.
On the surface, a case involving the Native American Church seems unlikely to arouse much controversy. But because it replaced the Sherbert test with one that allowed more government regulation of religious practices, followers of other religious traditions grew concerned that state and local laws, even ones neutral on their face, might be used to curtail their religious practices. In 1993, in response to this decision, Congress passed a law known as the
Religious Freedom Restoration Act (RFRA), which was followed in 2000 by the
Religious Land Use and Institutionalized Persons Act after part of the RFRA was struck down by the Supreme Court. In addition, since 1990, twenty-one states have passed state RFRAs that include the Sherbert test in state law, and state court decisions in eleven states have enshrined the Sherbert test’s compelling governmental interest interpretation of the free exercise clause into state law.
Juliet Eilperin, “31 states have heightened religious freedom protections,”
Washington Post , 1 March 2014. http://www.washingtonpost.com/blogs/the-fix/wp/2014/03/01/where-in-the-u-s-are-there-heightened-protections-for-religious-freedom/. Three more states passed state RFRAs in the past year.
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