Most rights considered by Americans to be "fundamental" are granted a special level of protection by the decisions of the United States Supreme Court. The standard is often described as "strict scrutiny" or "compelling interest." Under this standard of protection, a state must have more than just a good reason for writing legislation that encroaches upon its citizens' fundamental rights. Rather, the state must be able to prove a "compelling" interest in achieving some desired result, a result which necessitates the curtailment of fundamental rights. In 1990, however, the United States Supreme Court substantially restricted a right from this list: the right to freely exercise one's religion. The Court's decision, however, was subsequently severely criticized. In response to the criticism, Congress recently passed the Religious Freedom Restoration Act (RFRA), which returns the application of the compelling interest test to free exercise jurisprudence. This article will explore the impact of the decision in Employment Division Department of Human Resources ,v. Smith upon a discrete group of citizens: foster children. The analysis requires an examination of the problems inherent in protecting a child's right to free exercise in a foster care system, and whether in fact a child does have a protected right to freely exercise his or her religion. The article will consider the rights of the parents, and how parental rights have been impacted by Smith. Finally, the article will consider the possible arguments of states that prefer not to consider religion in making foster care placements. States may argue that the interests of children and parents in the foster care systems must be infringed upon for some greater good.
Thomas J. Cunningham,
Considering Religion as a Factor in Foster Care in the Aftermath of Employment Division, Department of Human Resources v. Smith and the Religious Freedom Restoration Act,
U. Rich. L. Rev.
Available at: https://scholarship.richmond.edu/lawreview/vol28/iss1/3