Golden Gate University Law Review


Rod M. Fliegel


Contemporary scholars have devoted ample attention to the Court's free exercise jurisprudence. The scope of this comment is thus appropriately limited to consideration of the fundamental free exercise questions presented by Hialeah. Although some review is obviously necessary, this comment is not intended as a comprehensive discussion of recent free exercise cases. Principally, issues which remain unresolved in the wake of the Court's Smith decision will be addressed, including the following. Observing that "neutrality" is the cornerstone of the Smith decision, what evidence may properly be considered when making the neutrality assessment? Will facial-neutrality be dispositive? Additionally, assuming that Smith is not controlling, are the challenged regulations appropriately subject to heightened review? Or will strict scrutiny be limited, as the Smith majority suggested, to the specific context of unemployment compensation regulations? As a related question, the Court should also speak to the issue of whether the government will be required to furnish "specific evidence" in support of any interest asserted as compelling. Resolution of this question would be useful in terms of reconciling the Court's opinions in the unemployment compensation cases (sensitive to the lack of specific evidence) with its decisions elsewhere. This comment will be organized in the following manner. Section II examines the debate between two leading interpretations of the First Amendment: "accommodation" and "formal neutrality." This debate provides a useful point of departure because it highlights the significance of controversy surrounding contemporary free exercise doctrine. Section III next reviews the district court's Hialeah opinion. Particular emphasis is placed on the nature and origins of the Santeria faith. Turning to the Supreme Court's major free exercise cases, Section IV then explores the Court's opinions prior to, and including, Smith. Finally, focusing specifically on the facts of Hialeah, Section V attempts to resolve the questions set forth above.