In Favor of Restoring the Sherbert Rule—With Qualifications



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Texas Tech Law Review


Points out that experience over a quarter of a century demonstrates that the Sherbert rule has been applied so as to provide a very diluted version of the traditional strict scrutiny criterion. Although the Smith rule contains many opportunities for exemptions to its approach, in the two decades since the ruling, the Court has done nothing to clarify its ambiguities. Because active judicial review is required to secure religious liberty for nonmainstream religions, a clearly stated, but qualified version of true strict scrutiny-not a generally watered down one-is needed for vigorous protection of judicial review. Later proposes five qualifications that should satisfy this need.



History of the Sherbert Rule, Sherbert v. Verner, Employment Division v. Smith, Free Exercise Clause, Strict scrutiny, Judicial review, Religious liberty for nonmainstream religions


Jesse H. Choper, In Favor of Restoring the Sherbert Rule—With Qualifications, 44 Tex. Tech L. Rev. 221 (2011-2012)