Academic journal article Boston University Law Review

Targeting Religion: Analyzing Appalachian Proscriptions on Religious Snake Handling

Academic journal article Boston University Law Review

Targeting Religion: Analyzing Appalachian Proscriptions on Religious Snake Handling

Article excerpt

"And these signs shall follow them that believe; In my name shall they cast out devils; they shall speak with new tongues; They shall take up serpents; and if they drink any deadly thing, it shall not hurt them . . . ."

Mark 16:17-18 (KJV)


The Free Exercise Clause of the First Amendment prohibits the federal government, and state and local governments by application of the Fourteenth Amendment, from requiring or restricting religious beliefs or practices.1 Historically, the Supreme Court imposed a high burden on government action that imposed a substantial burden on practices motivated by religious beliefs, even when that action was "neutral" with respect to religion. To be constitutional, the Court traditionally required that the government action further a "compelling interest" in the least restrictive manner possible.2 The legal shorthand for this form of heightened judicial review is known as "strict scrutiny." Then, in 1990, the Supreme Court dramatically departed from this historical standard of review in Employment Division v. Smith.3 There, the Court held that "generally applicable, religion neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest."4 The decision was not a popular one, and Congress briefly managed to reinstate the Court's historic strict scrutiny test by enacting the Religious Freedom Restoration Act ("RFRA"),5 which the Court quickly struck down as an unconstitutional usurpation of its ultimate authority to interpret the Constitution.6 Thus, per the current state of federal jurisprudence, religiously neutral and generally applicable laws are not subject to heightened judicial review. In the subsequent case of Church of the Lukumi Babalu Aye, Inc. v. Hialeah,7 however, the Court made clear that strict scrutiny is still to be applied when a law is neither religiously neutral nor generally applicable.8

After the Court struck down key provisions of RFRA, several states enacted their own RFRA analogues, employing the language of strict scrutiny as a statutory check on state action that substantially burdens religious practice, regardless of whether that action is neutral and generally applicable. Thus, a facially neutral and generally applicable law that substantially burdens practices motivated by religious beliefs can be both constitutional at the federal level and illegal (by statute) at the state level.

This complex legal framework has significant implications for the legality of state prohibitions on religious snake handling. As this Note explains, states have employed a variety of approaches when proscribing the practice, triggering different forms of judicial review. At least one state raises obvious constitutional concerns by targeting religion directly, while others attempt to avoid those concerns through the use of generalized public endangerment statutes. Some states follow a third approach by not proscribing the practice at all, in some instances relying on common law injunctions and local proscriptions instead.9 Part I of this Note provides a brief introduction to the practice of handling poisonous snakes for religious purposes. Part II summarizes the various approaches that Appalachian states use to proscribe the practice. Part III discusses the legality of these approaches under both the Free Exercise Clause of the Constitution and the relevant state statutory frameworks. This Note ultimately argues that Kentucky's prohibition overtly targets religious snake handling, is not a "generally applicable, religion neutral [law]" under Smith, and therefore ought to be subject to the traditional strict scrutiny standards.10 Taking this further, Kentucky fails to provide an interest so compelling, and a means so narrowly tailored, as to satisfy its constitutional burden.11 Similarly, Virginia's and Tennessee's facially neutral proscriptions belie impermissible attempts to target a religious practice and, accordingly, fails to meet Smith's heightened constitutional burden for the same reasons as Kentucky. …

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