A TEXTUAL APPROACH TO HARMONIZING SHERBERT AND SMITH ON FREE EXERCISE ACCOMMODATIONS

The American experiment is permeated by the desire of Americans for freedom of religion. This desire is most famously enshrined in the Free Exercise Clause of the First Amendment of the Constitution, which disables Congress from enacting laws that “prohibit[] the free exercise” of religion.”1 But every freedom must have limits, or it will consume the very government and civilization that seek to safeguard it. Our laws vary in nature from the profound (“thou shalt not kill”) to the seemingly trivial (“yield to pedestrians in crosswalk”), but in many cases, allowing people— any people—not to obey them would be catastrophic. What, then, should be done when the commands of a citizen’s religion conflict with those of the law? How are we to decide when, if ever, the Free Exercise Clause requires an exemption from such a law? In a nutshell, this is the question of religious accommodations—whether and when Americans have the right to engage in religious behavior, even if that behavior violates an otherwise applicable law. On one side of this debate is the extraordinary and essential American value of religious freedom; on the other is the manifest and urgent social need for at least some laws that everyone must obey. This Note chronicles and critiques where twentieth century free exercise jurisprudence has taken us, and offers a suggestion, rooted in the text of the First Amendment and judicial restraint, for where we should go. The Supreme Court began its modern free exercise jurisprudence with a test that, in theory, recognized the importance of protecting religious exercise from government interference, but in practice did little to protect free exercise and much to promote judicial meddling in religious affairs. Part I of this Note examines the compelling interest test of Sherbert v.