In free exercise cases, the Supreme Court has adopted a least restrictive alternative test in an attempt to maximize protection for religiously motivated practices. Because the least restrictive alternative test only considers the importance of the governmental interest and the availability of alternative means to accomplish those interests, thereby ignoring the importance of the burdened religious activity to the individual and the degree of burden on religious activity, all religious interests are treated equally when asserted against a governmental interest. Under such an inflexible and brittle test, the Supreme Court has recently denied religious claims which had previously been recognized. The author argues that only a test which considers all aspects of a religious claim affords permanent and maximum protection of religious interests.
Richard H. Seeburger
Public Policy Against Religion: Doubting Thomas ,
11 Pepp. L. Rev.
Available at: http://digitalcommons.pepperdine.edu/plr/vol11/iss2/1