Missing Link: A Brief History of Sherbert

What is Sherbert? It is the case that the Supreme Court decided in 1963 which set the precedent that the government must have a compelling justification met by narrowly tailored means to burden the exercise of religion by laws that are neutral. It is the case that the Court effectively overruled in 1990 in Employment Division v. Smith. And it is the case that Congress deliberately codified in RFRA to overturn the Supreme Court’s overruling in Smith. More importantly, Sherbert is the cornerstone of religious equality and accommodation jurisprudence, though very few know how it came to be.

There is a historical account of how the Supreme Court developed its equal protection doctrine in race discrimination and disparity cases. However, no comparable account about the Court’s application of equal protection to religious discrimination and disparity exists. This thesis provides a narrative of where the decision in Sherbert came from, and a thorough explanation of how through it Justice William Brennan, Jr. shifted religious freedom jurisprudence from a liberty analysis to an equality analysis. Sherbert is a missing link. It is where the Supreme Court embraced its role as gatekeepers to the Constitution by using the equal protection framework of the Fourteenth Amendment as a tool to recognize that free exercise of religion requires religious equality.

When Congress passed RFRA in 1993, it preserved Sherbert’s text, but it lost its rich history and wisdom. Justice Brennan worked diligently to shape contemporary free exercise jurisprudence which created a right for religious objectors to claim protection from discrimination. In doing so, he also inspired a framework for a future where equal protection and religion share a cooperative rather than antagonistic relationship. Today, battles over equal protection and religion, in which secular and religious values contend with each other, seem to have torn an irreconcilable gap within this framework. But a look at the past gives hope for the future. Sherbert is the missing link.