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Rejecting Both Smith and RFRA

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Title: Rejecting Both Smith and RFRA
Author: Loewy, Arnold H.
Abstract: Currently, the United States is divided into two regimes on how to resolve free exercise of religion questions. The official rule is Employment Division v. Smith, which held that so long as the criminal statute did not single out religious violators for negative treatment, the law is constitutional. Congress responded to Smith by passing the Religious Freedom Restoration Act (RFRA), which was quickly invalidated by the Court. Congress responded to this invalidation by passing the more narrowly targeted Religious Land Use and Institutionalized Person’s Act (RLUIPA), which requires that to interfere with a religious liberty, the government interest must be compelling, and the means used must have been the least restrictive. This article serves to answer two questions: (1) Should free exercise of religion ever be a defense to an otherwise valid criminal statute?, and (2) Did Smith get it right?
Related Resources: Click to follow Hein Online link Click to follow Lexis link Click to follow Westlaw link
Date: 2011

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