Emory Law Journal


Ryan S. Rummage


The First Amendment to the United States Constitution protects, among other things, the right to the free exercise of religion. In 1990, the Supreme Court held, in Employment Division v. Smith, that valid and neutral laws of general applicability do not violate the Free Exercise Clause. While this decision has reduced the amount of religious liberty protection available to claimants, the decision did leave a silver lining for religious liberty claimants in the form of hybrid rights, which involve the combination of a free exercise claim with another constitutionally protected claim. Because the Supreme Court in Smith did not adequately address hybrid rights, the question remains: when can a combination of protected rights provide religious liberty to a claimant? Three different hybrid rights approaches have emerged: treating Smith as dicta, allowing independent claims, and allowing colorable claims. This Comment argues that the first two approaches completely foreclose the possibility of hybrid rights protection, while the colorable claim approach provides the proper avenue for religious claimants. Then, this Comment makes two arguments for the expansion of hybrid rights.