Abstract

http://ssrn.com/abstract=1113624
 
 

Footnotes (160)



 


 



A Textual Approach to Harmonizing Sherbert and Smith on Religious Accommodations


Nicholas James Nelson


Notre Dame Law School


Notre Dame Law Review, Vol. 83, No. 2, 2008

Abstract:     
In Sherbert v. Verner, the Supreme Court interpreted the First Amendment's protection of religious freedom to require strict scrutiny - the highest standard of constitutional review - for laws that burden the exercise of religion. This required the courts to invalidate religion-burdening laws unless they were the least restrictive means of implementing a compelling governmental interest.

But from the perspective of religious freedom, the theoretical results of Sherbert were quite problematic. This Note explains how the adoption of strict scrutiny, by requiring courts to determine whether a specific religious practice was so harmful as to imperil a compelling state interest, also tended to force the federal judiciary to evaluate the merits and demerits of religious practices themselves - precisely the type of government inquiry the First Amendment must prohibit, if it is to mean anything at all.

This reveals the dilemma at the heart of the religious accommodations question: we cannot exempt every religious practice, no matter how abhorrent, from regulation; and yet to permit the government to decide which religious practices are acceptable would be to eviscerate the First Amendment. What is needed is some proxy standard that will clearly and reliably distinguish tolerable from intolerable religious practices without requiring direct government evaluations thereof. This Note proposes that the text of the First Amendment itself supplies such a standard. The Constitution's requirement that Congress make no law prohibiting free exercise, I suggest, should be interpreted as invalidating a statute only if that statute burdens religious practices that were being conducted in the United States at the time of its adoption.

Number of Pages in PDF File: 42

Keywords: First Amendment, accommodations, religious freedom, Sherbert, Free Exercise, strict scrutiny, first-in-time, make no law

Accepted Paper Series





Download This Paper

Date posted: March 31, 2008  

Suggested Citation

Nelson, Nicholas James, A Textual Approach to Harmonizing Sherbert and Smith on Religious Accommodations. Notre Dame Law Review, Vol. 83, No. 2, 2008. Available at SSRN: http://ssrn.com/abstract=1113624

Contact Information

Nicholas James Nelson (Contact Author)
Notre Dame Law School ( email )
P.O. Box 780
Notre Dame, IN 46556-0780
United States
Feedback to SSRN


Paper statistics
Abstract Views: 508
Downloads: 44
Footnotes:  160

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.312 seconds