FREE EXERCISE OF RELIGION AND SEX OFFENDER CIVIL COMMITMENT
The indefinite civil detention of sex offenders under modern sexually violent predator (SVP) statutes poses unique problems in the area of free exercise of religion.
Yoder and maintained the Court's legal conviction that an individual's First Amendment right to free exercise of his or her religion was something courts should strongly protect.
[but] there are areas of conduct protected by the Free Exercise Clause ...
Rather, the peace and safety provisos likely constituted narrow, compelling state interests that were narrow exceptions to an otherwise broad free exercise right.
(38) The people retained all rights not surrendered to the state--including certain rights, like the free exercise of religion, that were "by their nature inalienable." (39) Even should "natural rights have natural limits," (40) the state could only infringe religious liberty pursuant to the "peace and safety" of the state when religiously motivated conduct violated the physical security of society or harmed the negative liberty or property rights of others.
While the lack of precedent may suggest that the lower federal courts are writing on a tabula rasa with respect to corporate free exercise rights, the slate is not as blank as several district courts have suggested.
Although the Supreme Court has not specifically addressed whether for-profit corporations have free exercise rights, it has established rules for determining whether corporations can invoke particular constitutional rights.
into the Free Exercise Clause so long as courts apply strict scrutiny to
state action that restricts the free exercise of religion where the
This possibility is precluded by the Smith Court's reasoning because clearly the Free Exercise Clause right would be inadequate by itself in an exemption case under the Smith Court's reasoning.
The mischaracterization of Yoder would be more troubling if the traditional story of Free Exercise Clause jurisprudence were accurate, but the reality is that Sherbert and Yoder were never the panacea they have been made out to be.