ARTICLE: DISSECTING THE HYBRID RIGHTS EXCEPTION: SHOULD IT BE EXPANDED OR REJECTED? Skip over navigation
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Copyright (c) 2016 Board of Trustees of the University of Arkansas
University of Arkansas at Little Rock Law Review

ARTICLE: DISSECTING THE HYBRID RIGHTS EXCEPTION: SHOULD IT BE EXPANDED OR REJECTED?

Spring, 2016

University of Arkansas at Little Rock Law Review

38 U. Ark. Little Rock L. Rev. 449

Author

David L. Hudson, Jr. * and Emily H. Harvey **

Excerpt

I. INTRODUCTION

In the early 1960s, the Supreme Court of the United States adopted a high level of protection for religious liberty claims. 1 The Court applied a version of strict scrutiny when evaluating governmental laws or regulations that burdened an individual's free exercise of religion. 2 In 1990, the Supreme Court reversed decades of precedent and fundamentally changed the meaning and application of the Free Exercise Clause. In Employment Division v. Smith, the Court, in an opinion by Justice Antonin Scalia, determined that the Free Exercise Clause does not protect individuals from laws that do not target specific religious beliefs or practices. 3 However, Justice Scalia offered an exception for cases involving "hybrid rights." 4

A "hybrid right" is one that involves both the Free Exercise Clause and another constitutional right. 5 In the twenty-three years since the Smith decision, state and federal courts have grappled with the meaning and application of the hybrid rights exception with no clarification from the Supreme Court. In the process, lower courts have developed at least three general approaches to hybrid rights--rejection, independent viability, and colorable claim. 6 In some cases, courts arguably have used a fourth approach called the "cabining" approach, which limits application of hybrid rights to cases closely resembling the cases distinguished by the Court in Smith. 7

Many legal commentators and courts believe the federal circuits have split on the issue of hybrid rights. 8 However, an examination ...
 
 
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