ADF Alliance Alert

A Textual Approach to Harmonizing Sherbert and Smith on Free Exercise Accommodations
Nicholas J. Nelson, 83 Notre Dame L. Rev. 801 (2008)

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. Verner, and explains how this test required courts to evaluate the merits of the religious practices presented to them, thus undermining the very values it sought to protect. What is needed, Part I reveals, is some proxy standard by which courts can determine when an accommodation is unworkable without directly evaluating the beliefs of the religious adherents who seek one. From the wreckage of Sherbert, Part I picks out three desirable features of such a test: (1) substantive protection for religious exercise, (2) clarity, and (3) limits that do not depend on judicial evaluation of the merits of religious practice.

The jurisprudential response to the problems of the Sherbert test was dramatic: in Employment Division v. Smith, the Supreme Court abandoned most substantive protection for religious beliefs in favor of a nondiscrimination principle. Part II examines Smith and explains how it functions only slightly better than Sherbert, but at great cost in religious freedom and constitutional consistency. It then turns to other free exercise tests proposed in the academic literature and examines their respective strengths and shortcomings.

The accommodations dilemma, however, is much older than either Sherbert or Smith; every generation of Americans since at least the Framers has been aware of it. In fact, the text of the Constitution itself reveals a proxy test for whether an accommodation is tolerable–a test capable of synthesizing into a single jurisprudential standard both the substantive religious protection of Sherbert and the equally important bounds on that protection emphasized by Smith. Part III explains how the Constitution’s requirement that Congress “make no law” prohibiting free exercise suggests an eminently workable rule for free exercise accommodations: they should be required only for religious practices that existed in this country before the making of a contrary law.