MBE Rules · Constitutional Law
Free Exercise — neutral laws of general applicability
Employment Division v. Smith
The rule
A neutral law of general applicability that incidentally burdens religious exercise need only meet rational basis (Smith). Laws targeting religious practice get strict scrutiny (Lukumi). Modern trend (Fulton, Tandon) treats secular exemptions as triggering strict scrutiny.
In plain English
If a law applies to everyone equally and isn't aimed at any religion, it usually just needs to be reasonable, even if it affects religious practices.
Worked example
A city bans loud noises at night to reduce disturbances. A church wants to hold late-night services with loud music. The church's challenge fails because the noise law applies to everyone, not just religious groups.
Memory hook
Neutral Laws, Low Scrutiny. If a law isn't targeting religion, it just needs a reasonable relation to a legitimate goal.
The trap
Students think: any law affecting religion gets strict scrutiny. Wrong, because only laws targeting religion do. Neutral, general laws need only rational basis.
How examiners test it
MBE loves: a law burdens a religious practice but applies to everyone equally. Trap: assuming strict scrutiny. Correct: rational basis unless targeting religion.
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