Also known as: not neutral or generally applicable · neutrality and general applicability
Written by attorneys · grounded in primary & secondary sources — see below
A characterization applied to government action that burdens religious exercise by design rather than incidentally. The characterization arises when a law or policy singles out religious conduct for disfavored treatment or permits secular exceptions while burdening religious exercise. Such action triggers strict scrutiny under the Free Exercise Clause.
Nora Nash operates a Santeria temple that performs animal sacrifices as part of worship. The city enacts an ordinance that prohibits the precise method of slaughter used in those rituals while leaving other forms of animal killing untouched. Nash challenges the ordinance. The court applies strict scrutiny because the ordinance is neither neutral nor generally applicable.
Neil Nair is a public school football coach who quietly bows his head in prayer after games. The district adopts a policy that bars visible religious expression by employees and disciplines Nair for his conduct. Comparable secular conduct by other staff receives no discipline. The court applies strict scrutiny because the policy is neither neutral nor generally applicable.
Select any source to read its text and confirm it supports the definition.
Strict scrutiny applies when government action is neither neutral nor generally applicable. This occurs when a law or policy singles out religious conduct or allows secular exceptions while burdening religious exercise. The government must then prove a compelling interest pursued through narrowly tailored means.
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Selective enforcement that permits comparable secular conduct while burdening religious conduct shows the rule is not neutral or generally applicable. The presence of secular exceptions undermines claims of evenhanded application. Courts then require the government to satisfy strict scrutiny.
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No. A rule that allows officials to grant case-by-case secular exemptions loses general applicability. The government must then justify the denial of a comparable religious exemption under strict scrutiny. The existence of the exemption mechanism itself triggers the higher standard.
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Evidence includes timing of enactment after disclosure of religious conduct, derogatory religious language in the text, and underinclusive enforcement that spares similar secular activity. These factors demonstrate the rule is neither neutral nor generally applicable. Strict scrutiny follows.
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