Washington Law Review


The United States Supreme Court has struggled to find a fair and consistent approach to cases in which an individual's religious practice conflicts with a generally applicable law. Prior to Employment Division, Department of Human Resources v. Smith, the Court used a balancing approach to determine whether the state's interests in denying an exemption to a criminal law justified the burden that the law placed on an individual's religious practice. After Smith, the state must show only that the law is generally applicable and does not directly target a religious practice. This new approach underprotects religious conduct because it provides no guarantee against unnecessary infringements on religious freedom. By following certain objective guidelines, such as framing the state's interests narrowly and making an inquiry into the burden on the claimant, courts can apply the balancing approach in a fair and consistent manner, thus providing substantial protection for religious conduct.

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