The First Freedoms
The Privacy Amendments
The 5th Amendment
The 6th Amendment
Civil Trials
The Interpretive Rules

Freedom of Religion

Applying the Free Exercise Clause

Neutral Laws of General Applicability

Perhaps the most famous grant of a religious accommodation came in Wisconsin v. Yoder (1972), when the Court required the state of Wisconsin to grant Amish parents an exception to a state law that required students to attend school until the age of 16. The Court noted that the state’s requirement created “a very real threat of undermining the Amish community and religious practice as they exist today.” 

As the 20th century came to a close, the Supreme Court suggested that it would no longer grant religious accommodations in most circumstances. In Employment Division v. Smith (1990), Native Americans sought an accommodation for ingesting peyote, a prohibited drug, during religious ceremonies. The Court refused, announcing a new rule called the Smith rule: henceforth, they would not use strict Sherbert’s scrutiny rule to interpret the Free Exercise Clause. Instead, they would affirm neutral laws of general applicability. Since the drug prohibitions in Smith were neutral (that is, not directed at a particular religion) and generally applicable (they applied to everyone, not just Native Americans), they were upheld.

Smith Rule v. Strict Scrutiny

The Smith rule is simple, relatively easy to apply, and very controversial. Many people were, and remain, very concerned that it would allow government to interfere with the free exercise of their religion. Indeed, Congress enacted two statutes that attempt to overrule or at least limit Smith. The first statute, the Religious Freedom Restoration Act (RFRA) of 1993, mandated a return to the “strict scrutiny” test of Sherbert. The Court declared that RFRA exceeded Congress’s power as applied to the states, but not the federal government. Consequently, the Free Exercise Clause currently applies one way to the states and another way to the federal government. In other words, the Smith rule applies in free exercise cases arising from state laws, but strict scrutiny is the standard in free exercise cases arising out of federal law. In practice, this means that it is much easier to get religious exemptions from federal laws than from state laws.