Rethinking Free Exercise of Religion after Smith and Boerne: Charting a Middle Course

In this article, Professor Arnold H. Loewy discusses the Free Exercise Clause analysis used by the Supreme Court in Reynolds v. United States, Employment Division v. Smith, and City of Boerne v. Flores and contrasts it with the conflicting approach taken in Sherbert v. Verner and supported by Congress through the Religious Freedom Restoration Act. He points out the issues inherent in taking either of the two polarized approaches and presents an ad hoc middle ground for the analysis. He provides a list of seven factors to consider, discussing the importance and case law impact of each factor and examining the benefits and problems with his new approach.