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

Part I will set forth the analytical framework established by the Supreme Court in the RFRA and RLUIPA contexts before 0 Centro." This Part will provide a brief background to RFRA and RLUIPA and set forth the definition of "compelling interest" before 0 Centro. Part II will focus on the decision in 0 Centro; specifically, how the Supreme Court's redefinition of "compelling interest" significantly elevates the government's burden. Part III will compare the government's chance of winning on a "compelling interest" argument before 0 Centro" with the chance of winning in its wake. This Part will discuss the merits, flaws, and methodology of the case survey at the core of this Article, and will conclude that outside the prison context the government has little chance of satisfying its burden.

Finally, this Article will propose that courts should use the fact-specific, person-specific inquiry used in 0 Centro in conjunction with the more general, public-protecting compelling interest test used in United States v. Lee, Hernandez v. Commissioner of Internal Revenue, and Braunfield v. Brown.