Navigating the Free Exercise Clause: How General Applicability and Strict Scrutiny Divide Religious Liberty Claims

In 2021, the Supreme Court ruled 9-0 in Fulton v. City of Philadelphia that a Catholic foster care agency could refuse to place children with same-sex couples, a decision that appeared to mirror the religious exemptions sought decades earlier. Yet the ruling differed in one structural respect from the landmark 1990 case Employment Division v. Smith: the presence of a discretionary exemption in Philadelphia's city contract. That single contractual clause transformed the legal standard applied to the agency's First Amendment claim, shifting it from a highly deferential review to the nearly insurmountable hurdle of strict scrutiny.[1][3]

The modern Free Exercise Clause operates as a jurisdictional switch rather than a single spectrum of protection. When a religious plaintiff challenges a government regulation, the court does not immediately weigh the importance of the religious practice against the government's goal. Instead, the court first examines the architecture of the law itself to determine which of two distinct analytical tracks will govern the dispute.[6]

The first track was established in 1990 by Employment Division v. Smith. In that case, two Native American drug rehabilitation counselors, Al Smith and Galen Black, were fired and denied unemployment benefits after ingesting peyote as part of a religious sacrament. Oregon law criminalized the possession of peyote without any religious exemption.[1][4]

Writing for the majority, Justice Antonin Scalia reshaped constitutional law by declaring that "the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability." If a law applies to everyone equally and does not target religion by name or design, the government does not need a compelling reason to enforce it against religious objectors.[1]

Under the Smith framework, neutral and generally applicable laws are subject only to rational basis review. This is the lowest tier of constitutional scrutiny. The government merely needs to show that the law is rationally related to a legitimate state interest. In practice, laws evaluated under rational basis review survive constitutional challenges nearly 100 percent of the time.[1][6]

The Smith decision triggered an immediate legislative backlash. In 1993, Congress passed the Religious Freedom Restoration Act (RFRA) by a unanimous voice vote in the House and a 97-3 vote in the Senate. RFRA attempted to statutorily overrule Smith by requiring federal courts to apply strict scrutiny to all laws substantially burdening religion, regardless of their neutrality.[5]

While the Supreme Court later struck down RFRA's application to state and local governments in 1997, the federal statute remains in effect for federal actions. Furthermore, 26 individual states subsequently passed their own versions of RFRA, creating a patchwork legal landscape where the standard of review depends heavily on whether the challenged law is federal, state, or local.[5][6]

For state and local laws in jurisdictions without a RFRA, the First Amendment remains the primary shield, which brings the analysis to the second track: strict scrutiny. A law is forced onto this track if the plaintiff can prove it is not "neutral" or not "generally applicable."[2][6]

A law fails the neutrality test if it explicitly targets religious conduct. A law fails the general applicability test if it regulates religious conduct while exempting secular conduct that poses a similar risk to the government's stated interests. Crucially, as established in Fulton, a law also fails general applicability if it includes a mechanism for individualized exemptions.[3]

In the Fulton case, Philadelphia's contract with foster care agencies included a provision allowing the Commissioner of the Department of Human Services to grant exemptions from the city's non-discrimination requirements at their "sole discretion." Chief Justice John Roberts seized on this detail.[3]

Roberts wrote that such a discretionary system "invites the government to consider the particular reasons for a person's conduct." Because the city had the power to grant secular exemptions, it could not refuse to grant religious exemptions without subjecting its decision to strict scrutiny.[3]

Once a court determines that strict scrutiny applies, the burden of proof shifts entirely to the government. The Free Speech Center notes that to survive this standard, "the legislature must have passed the law to further a compelling governmental interest, and must have narrowly tailored the law to achieve that interest."[2]

A "compelling interest" is a standard far higher than a "legitimate" one. It requires the government to demonstrate an interest of the highest order, such as national security, public health during a severe crisis, or the eradication of specific forms of discrimination. Routine administrative convenience or general cost-saving measures consistently fail this test.[2][6]

Even if the government proves a compelling interest, it must also prove "narrow tailoring." This means the law must be the least restrictive means available to achieve the goal. If the government could achieve its objective through an alternative method that burdens religion less, the law is struck down.[2]

This bifurcated doctrine has transformed modern religious liberty litigation into a hunt for secular exceptions. Plaintiffs rarely argue that a law lacks a rational basis; instead, they scour municipal codes, state mandates, and administrative contracts for any secular carve-out—whether for medical reasons, economic hardship, or discretionary waivers.[3][6]

If a plaintiff finds a secular exception, the law loses its general applicability, strict scrutiny attaches, and the government almost invariably loses. The current Supreme Court has aggressively expanded what counts as a secular exception, leaving the 1990 Smith precedent technically intact but increasingly hollowed out in practice.[1][3][6]