The Legal Boundary Between the Garden and the Wilderness
Legislation or the Free Exercise Clause?
Examines the various legal standards, rules, or tests that have been used by the U.S. Supreme Court to resolve free exercise cases, and places these tests within the full factual and legal contexts of the cases. Particular attention is paid to the no‐exception test adopted in 1879 in the Reynolds case, the tests used in the important string of Jehovah's Witnesses cases of the 1940's, the more recent compelling state interest test as used in an Amish case involving compulsory formal education of children up to the age of 16, and finally the neutrality standard of the 1990 Smith case that reinvigorated the no‐exception test of 1879. A careful, detailed review of the particulars of the cases shows that the underlying analytical process used is excruciatingly influential to the ultimate decision: Justices in factually similar cases purportedly using the same abstract legal test reach different conclusions based upon the analytical process they use.
Keywords: Amish, analytical process, compelling state interest test, compulsory education, context, free exercise, Jehovah's Witnesses, legal rule, legal standard, legal test, neutrality, no‐exception test, particulars, Reynolds case, Smith case
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