Richard B. Collins has posted “Too Strict?” on SSRN. It is forthcoming in the First Amendment Law Review.
The abstract:
Should the strict scrutiny standard govern judicial review of claims that government has burdened religious freedom? American law’s patchwork of rules applies that demanding standard to some claims but denies any meaningful review to others. A major difficulty is that most claims alleging denial of religious freedom depend on beliefs that cannot be reviewed by secular courts. Claims based on allegations alone shift the burden to the defending government. Strict scrutiny purports to make justification very difficult; governments are supposed to lose most cases. A second defect of the test in religious freedom cases is its failure to consider harm that granting a claim may inflict on other persons; the test asks only about government interests. When judges suspect a claim may be trivial or false or unfair to others, they look for ways around the test. This accounts for the failure rate of strict scrutiny when it was the constitutional test and for the Court’s 1990 abandonment of that test. Another result is failure of nearly all sacred sites claims made by American Indian faiths.
Congress restored strict scrutiny for some claims by statute, reviving the problem. Ohio claimed that one of these statutes violated the Establishment Clause. The Court rejected the facial attack but in dictum suggested a solution. It said the Establishment Clause as applied should require consideration of interests of persons who would be harmed by sustaining a religious claim, and the context of religious freedom should make strict scrutiny less strict. That would bring American law into accord with doctrines applied abroad, notably by the European Court of Human Rights. But the Court’s 2014 Hobby Lobby decision instead allowed wealthy corporate owners to prevail over their employees in opinions that seemed to let religious claims override interests of others.
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