Academic journal article Case Western Reserve Law Review

Addressing the Hybrid-Rights Exception: How the Colorable-Plus Approach Can Revive the Free Exercise Clause

Academic journal article Case Western Reserve Law Review

Addressing the Hybrid-Rights Exception: How the Colorable-Plus Approach Can Revive the Free Exercise Clause

Article excerpt

INTRODUCTION  I.   THE HYBRID-RIGHTS CONTROVERSY      A. The Basic Axiom of Free Exercise Jurisprudence      B. The Smith Qualifications         1. The Hialeah Exception         2. The "Individualized Exemption"         3. The Hybrid-Rights Exception  II.  THE CIRCUIT SPLIT: LOWER COURTS' CONFUSION REGARDING      THE HYBRID-RIGHTS EXCEPTION      A. The Refusal-To-Recognize Approach      B. The Independently-Viable-Claim Theory      C. The Colorable-Claim Standard      D. "Open Recognition" Approaches         1. Interdependent Considerations         2. Per Se Delineations         3. Completely Open Approaches  III. ARGUING FOR THE EXCEPTION: A NOVEL LEGAL APPROACH      A. Policy Arguments for Full Recognition of the Hybrid-Rights         Exception      B. Evaluating Other Approaches         1. Arguing Against the Refusal-to-Recognize Approach         2. Arguing Against Two of the Open Recognition Approaches         3. Arguing Against the Independently-Viable-Claim Theory      C. Arguing for the Colorable Claim Requirement--with a Twist CONCLUSION 

"[I]n this land of equal liberty, it is our boast, that a [person's] religious tenets will not forfeit the protection of the laws, nor deprive him of the right of attaining and holding the highest offices that arc known in the United States."

--George Washington *

INTRODUCTION

The First Amendment provides the language for the Free Exercise Clause: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." (1) Although the definition of religion and the scope of the Free Exercise Clause have been the subject of much contention for centuries, the last decade has seen a drastic shrinkage in the scope of the Free Exercise Clause and in the protection of individuals' rights to freely practice their religion in the face of governmental regulations. (2) The deflation of the Free Exercise Clause was initiated by the United States Supreme Court in its 1990 decision Employment Division, Department of Human Resources of Oregon v. Smith, (3) which the Court subsequently affirmed in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah. (4) Now we are faced with a fundamental constitutional question: What is left of the Free Exercise Clause? Because case law and scholarly discussion regarding the scope of the Free Exercise Clause vary greatly, (5) this question requires further examination.

The scope of this Comment narrowly reviews and addresses a qualification to the generally accepted Smith rule known as the hybrid-rights exception, which states that free exercise claims are deserving of heightened scrutiny if they are combined with an independent, constitutional claim. This doctrine, developed by the Supreme Court in Smith, has caused courts and legal scholars to suffer considerable confusion and criticism. Some courts have contended that since the hybrid-rights exception is dicta in Smith, courts should wait until the Supreme Court provides more guidance. Other courts have attempted to apply the hybrid-rights exception but have not done so successfully. A few courts have even stated that the hybrid-rights theory is illogical and have criticized the Smith majority for seeking to distinguish Smith from precedent using the hybrid-rights exception.

This Comment addresses the hybrid-rights qualification to the Smith axiom and argues for a specific approach to the hybrid-rights exception through a novel set of lenses. Part I introduces the current free exercise legal framework and the hybrid-rights exception. Part II presents the lower courts' confusion with interpreting the Supreme Court's hybrid-rights exception. Part III suggests a novel view for how the hybrid-rights doctrine should be interpreted. This Comment concludes by arguing that the hybrid-rights theory can breathe life back into the Free Exercise Clause so long as courts apply strict scrutiny to state action that restricts the free exercise of religion where the action gives rise to a separate, colorable, and interdependent constitutional claim. …

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