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Article

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The Resurrection of Religious Freedom?, 107 Harvard Law Review 118 (1993)

Abstract

What a difference three years can make. After a series of unhappy religious freedom precedents culminated in the Supreme Court's horrible 1990 decision in Employment Division v. Smith, commentators were falling all over each other to insist that the Justices were allowing the Free Exercise Clause to disappear. In Smith, a department of the Oregon state government disciplined two employees who had violated state policy by using peyote, a controlled substance. The employees protested that the Free Exercise Clause was a shield, because they were adherents of the Native American Church and had used peyote as part of a religious ritual. Justice Scalia's opinion for the majority dismissed the claim: the fact that the peyote use had religious significance, Justice Scalia wrote, was irrelevant, as long as the state law was not "an attempt to regulate religious beliefs, the communication of religious beliefs, or the raising of one's children in those beliefs." In the absence of an open governmental attack on the religion, the opinion concluded, the religions, like other groups, must take their chances in politics.

That was then. This is now. At the end of its most recent Term, the Court decided Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, which raised a subtly different question. There the city of Hialeah, Florida, adopted a series of ordinances restricting the slaughter of animals; if valid and enforceable, the ordinances would have made it impossible to practice the religion of Santerfa, in which animals are killed as part of particular forms of worship. Animal-rights groups, which have long been critical of Santerfa, filed briefs on behalf of the city. But the Justices, in a complicated but unanimous set of opinions, struck the law down.

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1993

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