St. Thomas Law Review
First Page
235
Document Type
Article
Abstract
This Article provides an alternative perspective to the assumption that the battle for free exercise exemptions must be waged at the federal level. Like the vast majority of the law review commentators, this Author believes that Smith was wrongly, even dangerously, decided. However, unlike many of those who reject Smith, this Author also believes that if we must accept Smith as a baseline, RFRA is unconstitutional as applied to the states. 3 This Article argues that even if RFRA may not constitutionally be applied to the states, the concept of free exercise exemptions need not be pronounced dead or even significantly set back. Section I briefly discusses the application of RFRA to actions of the federal government and concludes that invalidation of RFRA as to actions of the federal government is unwarranted. Section II surveys the trend in the state courts toward rejecting Smith and embracing a vigorous understanding of the strict scrutiny test. Section 1H discusses the effect that RFRA has had on the development of independent state free exercise clause jurisprudence. Finally, Section IV discusses those states which appear to have rejected strict scrutiny under their own free exercise clauses and contemplates the assimilation of those states into the strict scrutiny mainstream.
Recommended Citation
Daniel A. Crane,
Beyond RFRA: Free Exercise of Religion Comes of Age in the State Courts,
10
St. Thomas L. Rev.
235
(1998).
Available at:
https://scholarship.stu.edu/stlr/vol10/iss2/4