Free Exercise Clause: Smith, Lukumi and Fulton Applied

The Free Exercise Clause protects religious belief and practice from government interference, and the analysis is refreshingly mechanical once two questions are answered in order. Is the belief a protected religious one? And is the burdening law neutral and genuinely generally applicable? The second question decides the standard of review, and the standard decides the case.

What makes the area genuinely difficult in 2026 is that the second question has become far more searching than it once was. Employment Division v. Smith established that a neutral, generally applicable law attracts only rational basis, however heavily it burdens religion. Fulton v. City of Philadelphia then held that a policy containing any mechanism for individualised, discretionary exemptions is not generally applicable at all. That single move has redirected a great many cases into strict scrutiny.

Diagram of Free Exercise Clause analysis showing the threshold sincerity question, rational basis for neutral generally applicable laws under Smith, strict scrutiny for targeting under Lukumi and for discretionary waivers under Fulton, and the role of RFRA and RLUIPA — Fig. 70 · The tier turns on neutrality and general applicability — and Fulton made general applicability much harder to establish.

The threshold: is it religion, and is it sincere?

Two requirements and one prohibition. The belief must be religious in nature rather than political, philosophical or merely a matter of personal preference, and it must be sincerely held. What the court may never do is inquire into whether the belief is true, orthodox, theologically coherent or shared by anyone else.

The religious character of a belief is assessed by looking for the ordinary indicia of religion — whether it addresses a higher power, an afterlife or ultimate questions of meaning; whether it involves rituals, observances or holidays; whether it generates a system of moral obligation. A belief need not belong to a recognised denomination, an established institution or a popular faith. Small, idiosyncratic and newly founded religions are protected on the same terms as ancient ones.

Sincerity, by contrast, is a factual question a court may examine, and it is the appropriate place to test a claim that appears opportunistic — asserted for the first time to avoid an obligation, or contradicted by the claimant’s own conduct. The distinction is important: probing sincerity is legitimate, probing doctrinal validity is not.

Smith: neutral, generally applicable laws get rational basis

Employment Division v. Smith (1990) is the default rule and it is unforgiving. Oregon prohibited peyote generally. Members of the Native American Church used peyote in religious ceremonies and were caught by the prohibition. Because the law was facially neutral — it did not single out religious use — and generally applicable — it applied to all peyote use by anyone — it received only rational-basis review, and no religious exemption was constitutionally required.

The doctrinal point is worth stating starkly, because it surprises people: under Smith the size of the burden is irrelevant. A neutral, generally applicable law may make a central religious practice impossible, and the Free Exercise Clause still supplies no remedy. The reasoning is institutional — a constitutional right to exemptions from generally applicable law would put every citizen’s conscience above every statute — and the remedy is legislative rather than judicial.

So Smith is where the argument ends if the law really is neutral and really is generally applicable. The modern practice of free-exercise litigation consists almost entirely of showing that it is not.

Lukumi: targeting triggers strict scrutiny

Where a law is not neutral — where it is aimed at religious practice, or at a particular religion — strict scrutiny applies, and the government must show the measure is necessary to a compelling interest and uses the least restrictive means. Church of Lukumi Babalu Aye v. Hialeah is the model. The city prohibited animal sacrifice in an ordinance enacted in response to Santería practice, and the ordinance could not survive.

Targeting is rarely admitted, so it has to be inferred, and the two most reliable indicators are worth memorising. First, the pattern of exemptions: if a statute forbids the religious conduct while sparing every comparable secular activity that causes the same harm, the exemptions reveal what the legislature actually cared about. Second, the surrounding record: statements at enactment, the timing relative to the practice, and the closeness of fit between the prohibition and one faith’s ritual. A law gerrymandered around a religion is not neutral however neutrally it is phrased.

Fulton: discretionary waivers destroy general applicability

Fulton v. City of Philadelphia (2021) is now the most heavily tested wrinkle in the area. The city’s foster-care contracts required agencies to certify same-sex couples as foster parents. Catholic Social Services sought a religious exemption and was refused. The policy looked neutral and generally applicable, so on a quick reading Smith would supply rational basis and the agency would lose.

It did not. The Court held that a policy is not generally applicable where it provides a system of individualised, discretionary exemptions — and the contract gave a city official authority to grant exceptions at her sole discretion. Crucially, it did not matter that no secular exemption had ever actually been granted. The existence of the mechanism was enough, because a government that has reserved the power to make exceptions must explain, under strict scrutiny, why it declines to make one for religion. Philadelphia could identify no compelling interest in refusing, and lost.

Smith survives formally but its practical reach has narrowed considerably, since discretionary waiver clauses are extremely common in licensing schemes, contracts, zoning codes and benefit programmes. The lineage here runs back to Sherbert v. Verner, where unemployment benefits were denied to a claimant who would not work Saturdays for religious reasons; that scheme involved individualised assessment of each claimant’s good cause, which is exactly the structure Fulton now targets.

Exam tip: never apply Smith before searching the statute for words like “in the discretion of”, “for good cause”, “may grant an exception” or “unless waived”. One such clause moves the whole problem into strict scrutiny under Fulton.

RFRA and RLUIPA: statutory strict scrutiny

Congress responded to Smith legislatively, and the resulting statutes matter enormously in practice. The Religious Freedom Restoration Act restores strict scrutiny wherever government action substantially burdens sincere religious exercise. Its application to the states was struck down in City of Boerne v. Flores as exceeding Congress’s enforcement power under Section 5, so RFRA now binds the federal government only.

The Religious Land Use and Institutionalized Persons Act fills part of the resulting gap. It imposes strict scrutiny on state land-use and prison regulations that substantially burden religious exercise, and it is valid because it rests on the Spending and Commerce Clauses rather than on Section 5. So a congregation challenging a zoning refusal, or a prisoner challenging a restriction on religious observance, has a statutory route to strict scrutiny that the Constitution alone would not supply.

The allocation is therefore easy to state and easy to get wrong: federal action, use RFRA; state land-use or prison regulation, use RLUIPA; any other state action, you are back to the constitutional analysis and must establish targeting or a discretionary-exemption mechanism to escape rational basis. Some states have enacted their own restoration statutes, which is a matter of local law rather than federal constitutional doctrine.

Law or actor	Analysis
Neutral, generally applicable state law	Smith
Law aimed at a religious practice	Lukumi
Neutral law with a discretionary waiver clause	Fulton
Individualised benefit assessments	Sherbert
Federal action burdening religious exercise	RFRA
State law generally	RFRA inapplicable (Boerne)
State land-use regulation	RLUIPA
Prison regulation of religious practice	RLUIPA

Table 1 · Which source of law supplies the standard, and what that standard is.

Worked example

A city zoning code provides that places of assembly may not operate in a residential district, but adds that the planning director “may grant an exception where she determines that the use is compatible with the neighbourhood”. A small congregation applies to hold weekly worship in a converted house and is refused, the director stating only that she is not persuaded the use is compatible. No exception has ever been granted to anyone.

The tempting analysis is that this is a classic neutral, generally applicable zoning rule: it restricts all places of assembly, religious or not, and under Smith the congregation would receive rational basis and lose. That analysis is wrong, and identifying why is the whole answer. The code contains an individualised exemption mechanism — the director “may grant an exception” on her own assessment of compatibility — and under Fulton that destroys general applicability. The fact that no secular exception has ever been granted is expressly irrelevant; what matters is that the city reserved the power to make exceptions and must therefore justify refusing one for religious exercise. Strict scrutiny applies, and a bare statement of incompatibility will not establish a compelling interest pursued by the least restrictive means. The congregation should prevail. Note also that RLUIPA supplies an independent statutory route to the same standard, since this is state land-use regulation.

Change one fact. Suppose the code flatly prohibited all places of assembly in residential districts with no waiver provision of any kind, and the city had never made an exception because it had no power to. Now the rule is genuinely neutral and genuinely generally applicable, Smith governs the constitutional claim, and the substantial burden on the congregation would not entitle it to an exemption. The congregation would have to rely on RLUIPA instead — which is precisely why the statute exists.

Common mistakes that cost points

Applying Smith without checking general applicability. After Fulton, a single discretionary waiver clause changes the standard.
Assuming Fulton requires proof that a secular exemption was actually granted. The existence of the mechanism suffices.
Inquiring into whether a belief is theologically valid. Courts may test sincerity, never truth or orthodoxy.
Requiring that a religion be established, recognised or popular. Idiosyncratic and new faiths receive the same protection.
Thinking a severe burden alone defeats a neutral, generally applicable law. Under Smith the magnitude of the burden is irrelevant.
Applying RFRA to state action. City of Boerne v. Flores struck that down; RFRA binds the federal government only.
Overlooking RLUIPA in land-use and prison cases, where it supplies strict scrutiny against the states.
Missing targeting shown through exemptions. A law sparing every comparable secular activity is not neutral, whatever its wording.

Frequently asked questions

Does a neutral law that makes a religious practice impossible violate free exercise?

Not under Smith, provided the law really is neutral and generally applicable. The magnitude of the burden does not raise the standard of review, and no exemption is constitutionally required. The realistic strategy is to show the law is not truly generally applicable, or to invoke RFRA or RLUIPA where they apply.

What exactly did Fulton change?

It narrowed general applicability. A policy that allows individualised, discretionary exemptions is not generally applicable, so refusing a religious exemption must be justified under strict scrutiny — and this holds even if no secular exemption was ever granted. Smith remains formally intact but applies to far fewer laws than it once did.

Can the government question whether my religious belief is genuine?

It can question sincerity, which is a factual matter and the proper place to address an opportunistic claim. It cannot question whether the belief is true, orthodox, internally consistent or shared by others. The belief must be religious rather than merely political or philosophical, but it need not belong to any recognised tradition.

Free exercise in California: from South Bay to Fulton, 2026

California generated the most important free exercise litigation of the pandemic era, and the cases are now standard authority on neutrality. Restrictions on indoor worship were challenged in a series of actions including South Bay United Pentecostal Church v. Newsom and a case brought by a Pasadena congregation, and in Tandon v. Newsom (2021) the Supreme Court held that California’s limits on gatherings in private homes were not neutral because comparable secular activities were treated more favourably.

Tandon established the comparator method that now drives these disputes: a rule is not generally applicable if it treats any comparable secular activity better than religious exercise, and the comparison is made by reference to the risk the government says it is addressing rather than by category. That reasoning, together with Fulton v. City of Philadelphia (2021) on individualised exemptions, means many rules that would once have survived Employment Division v. Smith now face strict scrutiny.

California specifics worth knowing:

California has no state religious freedom statute. There is no state analogue to the federal restoration act, so claimants rely on constitutional doctrine.
School immunisation has no religious exemption. California eliminated the personal belief exemption, and the courts have upheld that choice.
Employment accommodation is statutory and generous. The Fair Employment and Housing Act requires reasonable accommodation of religious observance, with a higher threshold for employers than federal law long imposed.
Land use has federal protection. Religious land use legislation constrains county and city zoning decisions affecting places of worship, and applications through Los Angeles County Regional Planning are assessed with that in mind.
Ministerial exception bars many claims. Employment disputes involving those who perform religious functions are outside judicial competence.
Look for individualised exemptions. A discretionary exemption mechanism destroys general applicability, which is often the winning point.

For 2026, build the comparator argument first and the burden argument second. Read with the Establishment Clause, the levels of scrutiny and unconstitutional conditions.

Next steps

The religion clauses work as a pair and frequently collide on the same facts, so read this beside the Establishment Clause and place both within the First Amendment analysis. Because everything here turns on which tier applies, it is worth revisiting the levels of scrutiny, and the Fulton reasoning about discretionary exemptions belongs alongside the unconstitutional conditions doctrine, which polices the same instinct to trade benefits for rights.

The opinions in Smith and Fulton are the two most useful to read in full and are freely available through Justia’s First Amendment collection. Cornell’s Legal Information Institute keeps a concise entry with current citations, and candidates should confirm the tested scope against the outlines published by the State Bar of California.