Freedom of Religion

In the late 1970s, social backlash to a series of Court cases, primarily concerning the Establishment Clause, led to fundamental changes in American politics and, eventually, the makeup of the Court. Some saw the backlash as a response to free exercise concepts posing a threat to the declining white Judeo-Christian dominance as the character of the U.S. population changed. Importantly, in 1990 the Court backed away from the strict Sherbert compelling interest test in Employment Division v. Smith. The Court held that Oregon state law could prohibit sacramental use of peyote without violating free exercise. The Court created a neutrality test in which a law could be upheld if it were determined "a valid and neutral law of general applicability" that happens to infringe on religious practices.

By the late 1990s the role of free exercise still meant government could not: (1) interfere with religious belief; (2) restrict religious expression without passing the strict standards of free speech; and, (3) treat religious activities in a discriminatory manner. In regard to the third element, Smith more clearly established that government could restrict religious activity no matter how minimal government interest may be if the law is neutral. Neutral meant restrictions apply to all citizens equally regardless of their religious beliefs. By significantly increasing the ability of states to interfere with religious practice, the Smith case held that protection of religious practices often falls more into the political realm of legal accommodation rather than being constitutionally required.

Dropping the compelling interest test in Smith spurred proponents of broad free exercise rights to seek other avenues for legal protection, including federal and state laws and state constitutions. In the 1993 book The Culture of Disbelief, author Stephen Carter argued that for religious exercise to be truly free, people must be free to engage in practices the larger society condemns. Also in 1993 Congress passed the Religious Freedom Restoration Act which reinstated the compelling interest standard. However, in 1997 the Court ruled against the constitutionality of the act in City of Boerne v. Flores as it applied to state and local governments. The decision was based on Congress overstepping its constitutional separation of powers authority and impinging on Supreme Court responsibilities.

After four centuries in a progression toward greater freedom of religion, the public debate over the role of religion in society highlighted a major feature of American life. Balancing between protection of individuals' religious beliefs, their social duties, and the protection of the rights of others continued to be at the core of discourse.