Common-Law Religious Freedom

UCLA Law Review, Vol. 46, June 1999

94 Pages Posted: 6 Oct 1998

See all articles by Eugene Volokh

Eugene Volokh

University of California, Los Angeles (UCLA) - School of Law


When should religious objectors get exemptions from generally applicable laws? For years, the two competing answers were "when courts say so, as a matter of constitutional law" (Sherbert v. Verner and Wisconsin v. Yoder) and "only when legislatures say so, as a matter of specific statutory provision" (Employment Division v. Smith). The federal Religious Freedom Restoration Act and its more recent state equivalents have been billed as ways of restoring the first model of "constitutional exemptions."

This article argues, though, that the RFRAs actually implement a third model -- a "common-law" exemption approach in which exemption decisions are made initially by courts but are ultimately revisable by legislatures -- and that this approach is actually normatively superior to both of the other models. The article

- explains how state RFRAs differ from the Sherbert regime;

- explains how they track the traditional common-law development of other subconstitutional claims of right;

- argues that this insulates state RFRAs from some of the criticisms of the Sherbert regime levied by Smith;

- suggests that drafters of state RFRAs should abandon their current reliance on the "strict scrutiny" test;

- argues that viewing religious exemption claims through a common-law lens helps show the fallacy of the Sherbert constitutional exemption framework;

- suggests that the "common-law" rights model might be profitably applied to rights claims even outside the religious freedom context.

Suggested Citation

Volokh, Eugene, Common-Law Religious Freedom. UCLA Law Review, Vol. 46, June 1999. Available at SSRN: or

Eugene Volokh (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
310-206-3926 (Phone)
310-206-6489 (Fax)

Register to save articles to
your library


Paper statistics

Abstract Views
PlumX Metrics