Religious freedom on the chopping block: Why the Smith Rule is preferable to the Sherbert Test.

摘要

This dissertation argues that the Free Exercise Clause does not confer on religious groups a constitutional right to disregard otherwise valid laws when their practices are incidentally burdened by such laws. It therefore rejects the view, often identified as originating with the case of Sherbert v. Verner, that barring a compelling interest, government is constitutionally required to grant a religious group an exemption whenever one of its laws inadvertently interferes with that group's religious practices.; Although the Supreme Court came to the same conclusion in Oregon v. Smith, their reasoning strongly emphasized an authoritarian mentality bearing on government's ability to legislate. While I share this view to some extent, the emphasis of this dissertation is that the Sherbert view of the Free Exercise Clause is undesirable because it violates the vital and well-settled democratic principle of the judiciary providing equal treatment under the law. Secular persons may, like religious individuals, have equally compelling reasons to be excused from complying with otherwise valid, generally-applicable laws. Yet they lack an equivalent legal weapon like Sherbert, or a solicitous judiciary, to further their interests.; This dissertation claims that there is little reason for the courts to treat religious minorities differently than other minorities. From an originalist position, fighting religiously-hostile, discriminatory laws---not conferring privilege---was the animating rationale behind the adoption of the Free Exercise Clause. Nor does it make practical sense to hold to a Sherbert view of the Free Exercise Clause from a non-originalist jurisprudence either. Such a view would create conflicts with the Free Exercise Clause and other provisions in the Constitution, such as the Speech and Equal Protection Clauses.; As entities lacking will in a democracy, it is not for the courts to deviate from the principle of equal treatment if the legislature deems equal treatment to be the norm. The judiciary's task when reviewing generally applicable laws is to either invalidate or sustain them---not to carve out exemptions. Exemptions should be left to the discretion of the political branches.