William & Mary Bill of Rights Journal


Andy G. Olree


When a claimant challenges some governmental law or action under the Free Exercise Clause of the First Amendment, courts have long required the claimant to make out a prima facie case that the government has burdened the exercise of the claimant's sincerely held religious beliefs. This requirement has been referred to as the threshold test for free exercise claims, since claimants must make this showing as a threshold matter before courts will proceed to evaluate the burden and the governmental interest at stake under some standard of scrutiny. This Article argues that although the Supreme Court of the United States has recently adopted a more deferential standard of scrutiny for many types of free exercise claims, the Court has never signaled dissatisfaction with the threshold test itself, and indeed could not abandon the test without being unfaithful to the text of the Free Exercise Clause. Moreover, this Article proposes that the Court's most recent free exercise case, Locke v. Davey, can be understood as a rejection of the claimant's challenge for failure to satisfy the threshold test. So understood, Davey signals little change in free exercise law and poses no new obstacle to claimants in future free exercise challenges involving governmental funding programs of various sorts.