In the early 1960s, the Supreme Court of the United States adopted a high level of protection for religious liberty claims. The Court applied a version of strict scrutiny when evaluating governmental laws or regulations that burdened an individual's free exercise of religion. 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 donot target specific religious beliefs or practices. However, Justice Scalia offered an exception for cases involving "hybrid rights." A "hybrid right" is one that involves both the Free Exercise Clause and another constitutional right. 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. 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. Many legal commentators and courts believe the federal circuits have split on the issue of hybrid rights. However, an examination of case law reveals that, regardless of the various approaches, the lower courts' analyses of hybrid rights claims sometimes differ in form, but rarely differ in substance. So, while many courts and legal commentators recognize at least three approaches to hybrid rights, this article contends there can only be one viable approach-rejection.This is so because, as Justice David Souter once opined, the hybrid rights exception is "untenable." This article contends that religious liberty advocates should abandon the hybrid rights exception and seek protection elsewhere. Two paths have emerged to provide greater protection for religious liberty. The first involves recasting free exercise claims as free speech claims. The second involves state and federal statutes that legislatively restore a strict scrutiny, pre-Smith approach. This article will argue that, of the two paths, free speech proves more promising. Part II of this article discusses Employment Division v. Smith, and introduces the hybrid rights exception. It also reviews the backlash that followed the Smith decision and outlines the ways state and federal governments attempted to override it. Part III focuses on the failure of the hybrid rights exception. It summarizes the lower courts' responses and approaches to hybrid rights. Then, it illustrates each approach by analyzing specific hybrid rights cases. These cases support the contention that courts accepting a hybrid rights theory, in substance, look no different from courts that do not. Finally, Part IV discusses four main advantages to seeking refuge under the Free Speech Clause.
38 UALR L. Rev. 449 (2016)