ABSTRACT
The Supreme Court has heard relatively few cases in which RFRA or RLUIPA were at issue. However, the same cannot be said of the circuit courts, and the circuit court interpretations of key terms in those statutes are important to consider. The circuits can neither agree about what counts as religion nor about what constitutes a substantial burden. Further, at least some of the circuits seem to be refusing to follow the little guidance that the Supreme Court has provided on these matters. So, too, state courts interpreting the state Religious Freedom Restoration Acts have offered less protective interpretations than one might have expected. These lower court decisions suggest that one of the evils that the Smith Court was trying to address, namely inconsistent application of free exercise protections, may well be incorporated into the interpretation of federal and state laws designed to protect free exercise.Those hoping for a return to the pre-Smith free exercise jurisprudence may well have their wishes granted, although a separate question is whether that will really result in more robust free exercise protections.
