Supreme Court interpretation of the Free Exercise Clause has come full circle.  From its narrow reading of the clause in 1878 in Reynolds, to its much broader reading of the clause in the Warren and Burger Court years, the Court returned to its narrow interpretation in the controversial 1990 case of Employment Division of Oregon v Smith.  The story of this circular migration is an interesting one, and may provide lessons for other areas of constitutional interpretation. 

The Court's decision in Smith provoked almost unanimous criticism on Capitol Hill, and Congress quickly responded by passing the Religious Freedom Restoration Act, designed to restore the test abandoned in Smith.  This effort, however, largely was to fail, as the Supreme Court ruled that Congress lacked the power to compel state accomodation of significantly burdened religious beliefs and practices.

The Supreme Court's first encounter with a Free Exercise Clause claim came when a Mormon polygamist in the Utah Territory challenged his conviction under a federal anti-polygamy law.  The Supreme Court rejected the appellant's claim that his religious beliefs necessitated, and therefore excused, his violation of federal law.  The Court read the Free Exercise Clause as protecting religious beliefs, not religious practices that run counter to neutrally enforced criminal laws.

By the Warren Court years of the 1960s, the Court had adopted a much more expansive view of the Free Exercise Clause, reading it to compel governmental accomodation of religiously-motivated conduct in the absence of a compelling state interest and the use of means that least burdened religious practices.  Applying this strict scutiny to laws that significantly burdened religious exercise, the Court found unconstitutional South Carolina's law denying unemployment benefits to a Seventh Day Adventist who turned down a job opportunity that included Saturday work (Sherbert). 

The Burger Court continued to apply this test, using it in 1972 to find unconstitutional (as applied to Amish families) Wisconsin's law mandating attendance in schools until age 17 (Yoder).  State and lower federal courts, of course, applied strict scrutiny to enjoin a variety of criminal laws in the 1970s and 80s.  For example, in 1979 in Frank v Alaska, the Alaska Supreme Court held that the state could not enforce its hunting laws against Athabascans who were religiously-motivated to hunt moose out of season--moose being a key ingredient in a religiously proper funeral potlatch.

By the mid-80s, the Supreme Court, while still using heightened scutiny, began to take a more skeptical view of Free Exercise claims.  The close division of the Court on these claims was revealed in its 1985 affirmance (by an equally divided Court, Justice Marshall not participating) of an Eighth Circuit decision enjoining Nebraska from enforcing a state law requiring photo identification on driver's licenses against a Nebraska motorist who believed that such pictures violated the Second Commandment's warning against worshipping graven images (Quaring v Nebraska). The next year, the tide turned against Free Exercise claimants when the Court rejected, 5 to 4, the seemingly sympathetic request of an Orthodox Jewish army psychiatrist who felt religiously-compelled to wear a yamulke on duty, and who asked to be exempted from the military's ban on such headwear (Goldman).

Lyng v Northwest Protective Cemetery Association in 1988 provided a major hint of the revolution in Free Exercise law to come by adopting a per se rule that the government need not concern itself with the impact that its land use decisions might have on religious practices.  Based on this newly announced principle, the Court permitted the United States to proceed with construction of a road through a national forest that would concededly have severe consequences for the practitioners of a Native American religion who considered the area sacred.

The big development--shocking to some--in Free Exercise jurisprudence came in Employment Division v Smith in 1990.  Reinterpreting and, in some cases, throwing out decades of caselaw, five members of the Supreme Court concluded that a generally applicable criminal law raises no Free Exercise issues at all, ending what had long been the obligation of states to demonstrate at least an important state interest and narrow tailoring when they enforced laws that significantly burdened religious practice.  The Court reinterpreted some Free Exercise cases such as Yoder as "hybrid" cases, raising both Free Exercise and substantive due process issues.  Other cases such as Sherbert, Thomas, and Hobbie were placed in the special category of "unemployment compensation rules" --and left undisturbed.  From now on, the five-member majority proclaimed, states will have to satisfy heightened scrutiny (except for hybrid cases and unemployment cases) only when a law specifically targets religious practice.

In 1993, in Church of Lukumi Babalu Aye v Hialeah, the Supreme Court took a case which it concluded showed an attempt by government to specifically target an unpopular religious practice, and struck down the laws in question--all designed to deal with animal sacrifice practiced by a large but largely clantestine religion of mostly ex-Cubans.  The Court unanimously concluded that the ordinances of Hialeah violated the Free Exercise Clause.