Nevertheless, the primary thrust of Section 3 of RLUIPA was to expand the fight to free exercise. Therefore, an interpretation of the Act that would make the deference due the state greater than or equal to the presumptive unconstitutionality of a law that substantially burdens free exercise seems implausible.
Still, the degree to which courts should give deference to a government agency that imposes a substantial burden on free exercise remains unclear.
posed some substantial threat to public safety, peace or order," (37) but only if the burden on free exercise resulted from a "compelling state interest in the regulation of a subject within the State's constitutional power to regulate." (38) Moreover, if the burden on free exercise was the effect of a law which impeded religious observance, or discriminated between religions, such a law was invalid even if the burden on free exercise was indirect.
The Court found that the appellant's disqualification indirectly burdened her free exercise because the disqualification exerted severe pressure on her to abandon her religious beliefs.
Nine state constitutions or declarations of rights contained provisos that the free exercise of religion would not excuse acts that violated the "peace" or "safety" of the state.
Indeed, Justice Scalia's discussion of the state free exercise provisos in his City of Boerne concurrence and Professor McConnell's response focus primarily on these peace and safety provisos.
Although the federal courts have consistently recognized that individuals have free exercise rights, the pending HHS mandate cases require the courts to look more closely at the proper scope of religious exercise under the Free Exercise Clause and RFRA.
The HHS mandate, therefore, raises an entirely novel First Amendment question: whether for-profit corporations have free exercise rights.
discussion regarding the scope of the Free Exercise Clause vary greatly,
hybrid-rights exception, which states that free exercise claims are
Between Yoder and Smith the Court decided a string of free exercise exemption cases.
(30) Furthermore, the claim in Smith was different from earlier free exercise cases granting exemptions to unemployment laws because the claimants in Smith sought an exemption based on illegal conduct while the claimants in the earlier cases sought an exemption based on religious conduct that was otherwise legal.