Michael T. Hawkins and Janine M. Hansen - Page 5

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          Commissioner, 65 T.C. 68, 85 (1975), affd. without published                
          opinion 559 F.2d 1207 (3d Cir. 1977).  Petitioners argue that the           
          requirements of Rule 24(a)(4) and Rule 200 conflict with their              
          religious rights under RFRA, that these Rules are invalid, and              
          that, therefore, this Court lacks jurisdiction.                             
               Congress enacted RFRA in response to Employment Div. v.                
          Smith, 494 U.S. 872 (1990).2  In Smith, the Supreme Court held              
          that valid neutral laws of general applicability do not violate a           
          person’s religious rights even when the law is not supported by a           
          compelling governmental interest.  See id.; Adams v.                        
          Commissioner, 110 T.C. 137, 138 (1998), affd. 170 F.3d 173 (3d              
          Cir. 1999).  Prior to Smith, the Government had to demonstrate              
          that the application of such laws to religious practices was                
          “essential to accomplish an overriding Governmental interest” or            
          represented “the least restrictive means of achieving some                  
          compelling state interest.”  Employment Div. v. Smith, supra at             
          899 (O’Connor, J., concurring in judgment); see also Adams v.               
          Commissioner, supra at 138.                                                 
               RFRA restores the compelling interest test used prior to               
          Smith by prohibiting the Government from imposing a substantial             
          burden on the free exercise of religion unless it demonstrates              

          2  In City of Boerne v. Flores, 521 U.S. 507, 536 (1997), the               
          Supreme Court held that the Religious Freedom Restoration Act of            
          1993 (RFRA), Pub. L. 103-141, sec. 2, 107 Stat. 1488, currently             
          codified at 42 U.S.C. secs. 2000bb to 2000bb-4 (1994), was                  
          unconstitutional as applied to State and local laws.  Although              
          neither party has raised the issue, we note that RFRA has since             
          been upheld as constitutional as applied in the Federal realm.              
          See Guam v. Guerrero, 290 F.3d 1210, 1221 (9th Cir. 2002).                  




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