Prehistoric Art: Dominated by Survival and Fertility

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Law and Religion

Laws of General Applicability and Their Effect on Religion in America
In 1990 the doctrinal landscape of free exercise was greatly altered by the groundbreaking case, Employment Division v. Smith. Prior to Smith, Federal free exercise cases were governed only by the opinion in Sherbert v. Verner. This required any law which placed a substantial burden on the exercise of religion be formed in the least restrictive fashion and to be justified by a compelling state interest. However in Smith the court articulated a new test for laws that placed a substantial burden on the free exercise of religion, holding that the law need not be supported by a compelling state interest so long as the law is neutral and of general applicability.

In the analysis below I wish to first address the religiously burdensome laws upheld under the Smith test, requiring only neutrality and general applicability, without regard to a compelling state interest, and second, what laws following the decision in Smith were still shot down notwithstanding their neutrality and general applicability.

The establishment clause in the Constitution states that congress shall make no law respecting the establishment of religion. In Lemon v. Kurtzman it was established that in order for a law to pass under the establishment clause it must have a secular governmental purpose, its primary effect must not be to advance or inhibit religion and lastly the law must not result in excessive governmental entanglement. What we are primarily interested in for the purpose of our analysis however, is the second clause of the first amendment requiring that the government not prohibit the free exercise of religion.

Post Smith, under the free exercise clause at common law, a law must only be neutral and of general applicability to survive a constitutional analysis, even where the law substantially burdens religion and the compelling governmental interest standard is not met. In the following discussion we will address what laws have survived under this test and the effect they have had on religion in America.

Religiously Burdensome Laws Upheld, and their Consequent Impact on Religion As stated above, it was in Employment Division v. Smith that the court first implemented this standard of neutrality and general applicability. In Employment Division v. Smith, Alfred Smith and Galen Black who were both members of the Native American Church and counselors at a private drug rehabilitation clinic were fired because they had ingested peyote, a powerful hallucinogenic drug, as part of their religious ceremonies. At that time intentional possession of peyote was a crime under Oregon law without an affirmative defense for religious use.

The majority opinion in Smith stated that although ordinarily a religiously burdensome law only survives constitutional scrutiny if there is a compelling state interest, when the law applies to everyone equally and the intent behind the law is not to regulate the exercise of religion, a compelling state interest is not required. Under this standard there is no room for the individualized consideration of the reasons a person might have for using peyote. In Smith the Supreme Court has sharply limited scrutiny of incidental burdens in the context of religion. The opinion states that if it permitted a wide approach to prohibiting religiously burdensome laws, it would be too easy for citizens to evade a multitude of important laws. This approach would run contrary to public policy and the very reason that we have a society governed by laws in the first place.

Another famous utilization of this standard was in Christian Legal Society v. Martinez. Here a student organization, the Christian Legal Society, required members to subscribe to a Statement of Beliefs and refrain from certain proscribed behaviors, including homosexuality. The school...
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