[Chapter 17.  RELIGION AND THE CONSTITUTION]

2. The Free Exercise of Religion

• SHERBERT V. VERNER, p. 1659 (1963): the modern leading case
• what regulation, with what purpose?
• does the law (or other state action) impose a substantial burden on the exercise of the addressee's religion?
• if so, is it necessary for the protection of a compelling state interest?
• is the state's interest here compelling?
• is there any less burdensome alternative means available?
• compare Braunfeld v. Brown (1961), cited p. 1660: Sunday closing laws, sustained
• interest in providing a family day of rest
• uniformity required to assure maximum benefit (?)
• is this case adequately distinguished from Sherbert?
• compare Reynolds v. U.S. (1879): criminal prosecution for bigamy, against Mormons who practiced it with religious sanction, sustained
• is the state punishing religious belief?
• are practices as such protected under the First Amendment?
• Further issues under Sherbert standard
• when is a practice founded in religious belief? WISCONSIN v. YODER, p. 1662 (1972) [not assigned]
• must the belief be widely shared? Thomas v. Review Board, p. 1662 (1981) (no, not dispositive that other members of same sect disagree)
• must the believer belong to an established sect or church? Frazee v. Illinois Department of Employment Security (1989)
• when is the state justified in refusing to accommodate? U.S. v. Lee (1982), reinforcing Braunfeld in denying exemption from Social Security taxes
• military dress codes: Goldman v. Weinberger (1986)
• prison restrictions: O'Lone v. Shabazz (1987)
• gov't use of soc. security numbers for identification: Bowen v. Roy (1986)
• when is a burden OK because "slight" or "incidental"? Lyng, cited p. 1685 (1988)
• Erosion of the Sherbert standard, back to Reynolds?
• EMP'T DIV., DEPT. HUM. RES. OF OREGON V. SMITH, p. 1666 (1990)
• does the state prescribe a religion-neutral rule of conduct?
• if so, no free exercise problem?
• is it crucial that it was a criminal law prohibiting the practice?
• would the case have been decided differently under Sherbert/Lee?
• if all the FE clause does is to prohibit discrimination against religion, are the two religion clauses redundant?
• Religious Freedom Restoration Act of 1993: can Congress overrule the Court?

CITY OF BOERNE V. FLORES, p. 1186 (1997)