Compelling the Courts to Question Gonzales v. O Centro: A Public Harms Approach to Free Exercise Analysis

Ari B. Fontecchio, Benjamin N. Cardozo School of Law

Abstract

At its core, this article uses an original, empirical case study to argue that the Supreme Court's 2006 decision in Gonzales v. O Centro has elevated the level of scrutiny with which courts evaluate the government's compelling interest, expanding the safe harbor for harmful, religious activity. In O Centro, the Supreme Court rejected the government's compelling interest in regulating religious use of the Schedule I hallucinogenic substance hoasca. The case survey at the core of this article demonstrates that since this decision, lower courts have required the government to justify its regulation of potentially harmful activities with an almost unrealistically high showing. Specifically, the study examines all the compelling interest cases since Sherbert v. Verner, which set forth the compelling interest test under the Free Exercise Clause in 1963. After classifying the cases into pre- and post-O Centro categories, the study compares the rates at which courts accept(ed) the government's proffered interest as "compelling." Finally, after performing analysis and calculations, the article concludes that the Court's decision in O Centro does, in fact, make the government's burden unrealistically difficult to satisfy in both the RFRA and RLUIPA free exercise contexts. This paves the way for public harms.