Academic Legal Writing - Eugene Volokh [105]
[¶ 14] In rejecting the majority of the free exercise claims it heard, the Court found either that the government had a compelling interest or that the free exercise right had not been burdened. In so finding, the Court simultaneously expanded what it considered to be a “compelling” governmental interest and narrowed what it considered to be a free exercise burden. While claiming that only interests of the “highest order” could justify a burden on religious liberty, the Court upheld state regulations that were justified by such interests as the uniform application of laws or administrative convenience. As commentators and federal judges have noted, and as Justice John Paul Stevens intimated in his concurrence in United States v. Lee, the Court's acceptance of such flimsy state rationales indicates that it was not applying a genuine “compelling” interest test.
[¶ 15] While relaxing its definition of “compelling,” the Court restricted its definition of burden. Justice O'Connor, in Lyng v. Northwest Indian Cemetery Protective Association, provided the Court's most recent, and strictest, formulation of the term “burden.” The case involved a challenge brought by Native Americans to the construction by the government of a road in a National Park through lands long used by several tribes for religious rituals. Despite noting that the “logging and road-building projects at issue in this case could have devastating effects on traditional Indian religious practices,” Justice O'Connor concluded that the Indian's free exercise rights were not burdened. A burden on religion can only exist, she continued, if the government action has a “tendency to coerce individuals into acting contrary to their religious beliefs ....” As Professor Ira C. Lupu describes, this coercion theory of burdens creates a threshold requirement that few free exercise claimants could overcome.
[¶ 16] Thus, even prior to Smith, the free exercise claimant faced something of a Catch-22. In order to demonstrate a burden, the government involvement or interference with the adherent's religious practices had to be significant enough that it could potentially “coerce” the adherent to abandon her faith. Yet such extensive involvement or interference would almost always signify that the government had a compelling interest in the law or practice in question, particularly considering what constituted “compelling” in the Court's eyes. In other words, to show a burden was often to present simultaneously the government's compelling interest. Conversely, if the government's involvement or interference was not strong, i.e., its interest was not compelling, it was unlikely that a burden could be demonstrated.
[¶ 17] Seen in this light, Smith, in tandem with Lyng, simply made this Catch-22 explicit. After Lyng it seemed the only sure way of demonstrating a burden would be to show that the particular religious practice in question was criminally prohibited. Smith, however, holds that such prohibitions are, at least in some instances, immune from exemptions. Thus, at present the only certain way of proving a burden is also the surest way of ensuring that the free exercise claim will fail. In making this Catch-22 obvious, Smith in one sense achieved wholesale what the Court had already been doing retail.
[¶ 18] The Smith decision undoubtedly completed the Court's gutting of the Free Exercise clause, but it seems clear that the clause had already been hollowed by the Court before Smith. One wonders, then, why so many reacted with such alarm to the decision. The answer, at least in part, stems from a belief—shared by several scholars—that the clause was applied with more vitality in the lower courts.56 This belief, however, at least with regard to the courts of appeals, is simply misplaced.
This section comes where a “background” section