Free Exercise of Religion
 
Preliminary Hurdles (Threshold Requirements)

Under the Free Exercise Clause, for a challenger to seek protection under that clause, the challenger must satisfy 3 preliminary or threshold requirements. The challenger must show they have a sincerely held religious belief or practice which has been burdened (typically either through direct or indirect coercion or through the imposition of penalties) by the government. For example, in Wisconsin v. Yoder the burden is the risk of a criminal penalty in the form of a fine for truancy.

This can be broken down into 3 requirements:

1) the burden requirement: the government is imposing a burden on the religious beliefs of the claimant;
2) the sincerity requirement: the claimant’s assertion of a burden on their religious beliefs is sincere and not faked; and
3) the religious belief requirement: the beliefs that are burdened are religious beliefs as opposed to political beliefs or lifestyle choices.

The government may defeat a Free Exercise Clause claim before reaching the merits of the claim in 3 different ways based on the 3 preliminary hurdles:

(1) showing that no religious practice has been burdened by the government. This requirement is sometimes described as requiring a substantial burden on religion.
(2) showing that the asserted religious belief is not sincerely held.
(3) showing that the conduct at issue is not a religious practice.

The burden requirement can be defeated by the government showing the absence of a burden on the exercise of religion in two different ways:
(1) Showing that the government has not imposed any civil or criminal penalties on the exercise of religion or denied any benefits on that basis; and 
(2) showing that the government has not sought to coerce particular behavior either directly or indirectly even though the effect of its actions has been to interfere with religious practice.

Beyond the Preliminary Hurdles

If the challenger satisfies all three threshold requirements, the Free Exercise Clause claim would then be analyzed under Smith v. Employment Division. Under Smith, the standard of review only requires government action be rational unless the challenger can show the law is either not neutral or not generally applicable or if the challenger convinces the court to recognize the hybrid rights theory and the challenger demonstrates the existence of another fundamental right infringed by the government's actions. In any of those situations, the government action would be subject to strict scrutiny review. Under that standard, the government would have to justify its action by demonstrating it has a compelling governmental interest and that it has selected a narrowly tailored means to advance that interest.