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particular religious sect on their face, but which nonetheless targeted a small and
unpopular religious group, Santeria worshippers. The ordinances were written so that they
prohibited animal sacrifice in religious rituals, a feature of Santeria worship, while allowing
the killing of animals for various other purposes, such as for food, hunting, and pest
control.

Religious Freedom Today: Two Conflicts

In recent years, two controversies have emerged that run to the foundation of the
American tradition of religious liberty, and how they are resolved by the Supreme Court
will have a profound impact on the character of American government and society for
years to come. One relates to the fundamental scope of the Free Exercise Clause: how
much religious accommodation may (or must) the government provide, and is it up to the
courts, the political branches, or both to decide? The other is the growing conflict between
the freedom of religious groups to define their membership and message without
government interference, and antidiscrimination statutes that would punish religious
groups for making decisions on religious or, increasingly, moral criteria.

The Scope of Protection for Religious Exercise. What happens when a law that does not
target religion for special disfavor still imposes a heavy burden on religious exercise? For
example, if a county generally prohibits the use of alcohol, could Jews or Catholics be
prosecuted for using wine in a seder or mass? If they were prosecuted, could they obtain
an exception to the general law in court under the Free Exercise Clause, or would their
only recourse be to suffer the penalty this time, and to attempt to revoke or obtain an
exception to the rule through the political process? And if they succeeded in obtaining an
exception from the legislature or executive, would that represent special favor to religion
in violation of the Establishment Clause?
These questions are central to the current debate over religious liberty in the United States
today, but they began to emerge in 1963, when the Supreme Court decided Sherbert
v. Verner. In that case, the court set forth a general test under the Free Exercise Clause
such that anytime a law imposed a “substantial burden” on religious exercise, courts
should apply “strict scrutiny” to that burden. That is, courts should strike down the law as
unconstitutional unless the government could prove that the burden represented the
means “least restrictive” of religious exercise to serve a “compelling governmental
interest.” In 1990, in Employment Division v. Smith, the court revisited Sherbert and
narrowed the scope of application of its “substantial burden” test to the two situations
discussed above (i.e., where the burdens are imposed through “systems of individualized
assessments,” or in “hybrid situations” implicating additional fundamental rights).
Outraged by Smith’s limitation of Sherbert, Congress responded by passing the Religious
Freedom Restoration Act of 1993 (RFRA), which was designed to restore application
of Sherbert’s strict scrutiny to every “substantial burden” on religious exercise, not just
those involving “individualized assessments” or “hybrid” rights. Several states followed the
federal government’s lead, passing laws that mirrored RFRA.39 Some states also
interpreted their constitutions so that their free exercise protections maintained the

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