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Hastings Constitutional Law Quarterly

Authors

Eric D. Yordy

Abstract

Using the dispute between the native tribes of northern Arizona and the federal government regarding land controlled by the federal government, but held sacred by Native American tribes, this Article demonstrates how the U.S. Supreme Court's 1990 decision in Employment Division v. Smith and the subsequent activities of courts and legislative bodies disrupted free exercise jurisprudence and created a quagmire of confusion related to religious freedom. The Article looks briefly at the history of the Free Exercise clause in the courts, the evisceration of free exercise jurisprudence in Smith and the subsequent enactment of the Religious Freedom Restoration Act.

The Article argues that the Supreme Court should hear the current dispute, should overrule Smith, should declare RFRA unconstitutional, and should restore the compelling interest test as the proper test for the analysis of the First Amendment's Free Exercise clause. The Court should then move forward to clearly define the terms of the test, such as "burden" and "compelling." Further, the Court should set forth standards for the government when attempting to infringe upon religious freedom, encouraging the agency or legislative body to clearly enunciate its compelling interest and justify the action as the least restrictive means to advance the interest as set forth.

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