Supreme Court interpretation of the Free Exercise Clause has come full circle.  From its narrow reading of the clause in 1878 in Reynolds, to its much broader reading of the clause in the Warren and Burger Court years, the Court returned to its narrow interpretation in the controversial 1990 case of Employment Division of Oregon v Smith.  

The Court's decision in Smith provoked almost unanimous criticism on Capitol Hill, and Congress quickly responded by passing the Religious Freedom Restoration Act, designed to restore the test abandoned in Smith.  This effort, however, largely was to fail, as the Supreme Court ruled that Congress lacked the power to compel state accomodation of significantly burdened religious beliefs and practices. 

In the mid-80s, the Supreme Court, while still using heightened scutiny, began to take a more skeptical view of Free Exercise claims.  In 1986, the tide turned against Free Exercise claimants when the Court rejected, 5 to 4, the seemingly sympathetic request of an Orthodox Jewish army psychiatrist who felt religiously-compelled to wear a yamulke on duty, and who asked to be exempted from the military's ban on such headwear (Goldman).

Lyng v Northwest Protective Cemetery Association in 1988 provided a major hint of the revolution in Free Exercise law to come by adopting a per se rule that the government need not concern itself with the impact that its land use decisions might have on religious practices.  Based on this newly announced principle, the Court permitted the United States to proceed with construction of a road through a national forest that would concededly have severe consequences for the practitioners of a Native American religion who considered the area sacred.

The big development--shocking to some--in Free Exercise jurisprudence came in Employment Division v Smith in 1990.  Reinterpreting and, in some cases, throwing out decades of caselaw, five members of the Supreme Court concluded that a generally applicable criminal law raises no Free Exercise issues at all, ending what had long been the obligation of states to demonstrate at least an important state interest and narrow tailoring when they enforced laws that significantly burdened religious practice.  The Court reinterpreted some Free Exercise cases such as Yoder as "hybrid" cases, raising both Free Exercise and substantive due process issues.  Other cases such as Sherbert, Thomas, and Hobbie were placed in the special category of "unemployment compensation rules" --and left undisturbed.  From now on, the five-member majority proclaimed, states will have to satisfy heightened scrutiny (except for hybrid cases and unemployment cases) only when a law specifically targets religious practice.

Hialeah banned ritual animal slaughter, commonly practiced by followers of the Santeria religion

In 1993, in Church of Lukumi Babalu Aye v Hialeah, the Supreme Court took a case which it concluded showed an attempt by government to specifically target an unpopular religious practice, and struck down the laws in question--all designed to deal with animal sacrifice practiced by a large but largely clantestine religion of mostly ex-Cubans.  The Court unanimously concluded that the ordinances of Hialeah violated the Free Exercise Clause.

The Smith decision proved as unpopular with Congress as it did with many within the religious community.  Congress in 1993 responded to the Smith decision by voting overwhelmingly to pass the Religious Freedom Restoratation Act of 1993 designed to return religious exercise cases to the pre-Smith standard for laws burdening religious practices.  Under RFRA, federal, state, and local laws interfering with religious exercise would have to be supported by a compelling state interest and be a least restrictive of religious freedom as possible.  The Supreme Court, however, gets the last word on issues of constitutional interpretation.  In 1997, in City of Boerne v Flores, the Court ruled that RFRA was unconstitutional, at least as applied to state and local governments.  The Court concluded that the Constitution, and in particular Section 5 of the Fourteenth Amendment, gave no power to Congress to do more than adopt remedial measures consistent with Fourteenth Amendment interpretations of the Court, and that Congress had instead tried to changed the substantive law--substituting its interpretation of the Free Exercise Clause for that of the Supreme Court.

Joshua Davey (American Bar Journal photo)

In 2004, the Supreme Court in Locke v Davey considered the reach of Lukumi Babalu in a case involving a Washington State scholarship program for gifted students.  The program allowed students receiving a state scholarship to pursue any major, with one exception: a degree in devotional theology.  When Joshua Davey, a scholarship recipient, was denied funding to pursue a theology program at Northwest, a private religious college, he sued, alleging that Washington had violated his Free Exercise right.  Chief Justice Rehnquist, writing for a 7 to 2 majority, found that the Free Exercise Clause and Establishment Clause, read together, offered enough "play in the joints" to allow Washington to exclude a major in devotional theology, "a religious calling" as much as "an academic pursuit," from the list of endeavors it will support with taxpayer funds.  Justices Scalia and Thomas disagreed, finding the exclusion to be a clear violation of Free Exercise principles laid down in Lukumi Babalu.