Date of this Version
Nebraska Law Review (2005) 83: 1,178-1,203.
In Employment Division v. Smith, the Supreme Court revised its jurisprudence of religious liberty by declaring that, as a general rule, the free exercise of religion may be prohibited by government so long as it does so by means of a neutral law of general application. However, in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the Court made clear that "[a] law burdening religious practice that is not neutral or not of general application" violates the Free Exercise Clause unless the government justifies the restriction on religious liberty by passing a surpassingly strict compelling interest test.
Although the Court has not yet "define[d] with precision"' the boundary line between general applicability and nongeneral applicability, one clear, per se rule has been determined. Under the Court's present understanding of Sherbert v. Verner, whenever the government has in place an individualized system of discretionary assessments to allocate some benefit or burden, it may not deny a claim for religious accommodation under that system without compelling justification.
Under the revised (or what I have been calling the transfigured) version of Sherbert, strict scrutiny will apply if the religious-liberty claimant establishes two things: (1) that the State has in place an individualized process or system for allocating governmental benefits or burdens and (2) that his or her religious-liberty claim has been rejected under the ad hoc scheme. In other words, Sherbert imposes a categorical rule that treats the individualized procedure as per se not neutral and not generally applicable.
This understanding of Sherbert recognizes that religious liberty is particularly vulnerable when government officials exercise discretionary authority to allocate the ubiquitous burdens and benefits of the modern Regulatory-Welfare State. The Court has wisely grasped the notion that such subjective review creates too great a risk of discrimination and bias against unpopular or minority religious beliefs and practices. The rule of the transfigured Sherbert should protect religious liberty in a large number of cases concerning claims for religious accommodation involving public schools, state universities, governmental employment, zoning and land use regulation, and other governmental rules and regulations that are subject to discretionary permits, waivers, or exemptions.
In short, Sherbert has returned from its ride on the Hogwart's Express in a transfigured state, and in this revised form it should often provide constitutional accommodation to religious practices against discretionary decisionmaking in a great variety of situations.