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A Textual Approach to Harmonizing Sherbert and Smith on Religious Accommodations

42 Pages Posted: 31 Mar 2008  

Nicholas James Nelson

Notre Dame Law School


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.

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

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:

Nicholas James Nelson (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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