For the individual, the court must determine
whether the person has a claim involving a sincere religious belief, and
whether the government action is a substantial burden on the person’s ability to act on that belief.
If these two elements are established, then the government must prove
that it is acting in furtherance of a "compelling state interest," and
that it has pursued that interest in the manner least restrictive, or least burdensome, to religion.
The Supreme Court, however, curtailed the application of the Sherbert test in the 1990 case of Employment Division v. Smith. In that case, the Court held that a burden on free exercise no longer had to be justified by a compelling state interest if the burden was an unintended result of laws that are generally applicable.3
After Smith, only laws (or government actions) that (1) were intended to prohibit the free exercise of religion, or (2) violated other constitutional rights, such as freedom of speech, were subject to the compelling interest test. For example, a state could not pass a law stating that Native Americans are prohibited from using peyote, but it could accomplish the same result by prohibiting the use of peyote by everyone.