73 Am. U. L. Rev. 729 (2024).

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Abstract

Under modern Supreme Court jurisprudence, the First Amendment ordinarily imposes no heightened standard of review upon neutral laws of general applicability that coincidentally burden the free exercise of religion. To relieve or minimize this burden, however, lawmakers are generally free to promulgate exemptions from, or accommodations to, such laws for the benefit of religious adherents. Such accommodations are common.

When a law is not neutral with respect to religion, or when the law is not generally applicable, then it will be subject to the exacting test of strict scrutiny to the extent that it burdens the free exercise of religion. Should the law fail this test, the Constitution requires—at a minimum an exemption from the law to protect those whose religious exercise is burdened by its application.

An undertheorized phenomenon in this area is the repeal of a religious accommodation that had been previously granted. Although such an accommodation may not have been constitutionally required ex ante, it is far from clear that its repeal can be freely executed ex post. By its very terms, any such repeal would typically appear to be non-neutral with respect to religion, thereby implicating the test of strict scrutiny.

The Article addresses this lacuna in constitutional thought, concluding that, unless a religious accommodation is repealed alongside all other applicable exemptions to the law in question, such a repeal would indeed be subject to the text of strict scrutiny, and, consequently, most likely unconstitutional.

* Professor of Law, Maurice A. Deane School of Law, Hofstra University.