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that application of the burden is the least restrictive means of
achieving a compelling governmental interest.3 See 42 U.S.C.
sec. 2000bb-1(b); Adams v. Commissioner, supra. In evaluating
whether the Government has met the compelling interest test,
cases decided prior to Smith are applicable, and the test “should
not be construed more stringently or more leniently than it was
prior to Smith.” Adams v. Commissioner, supra at 139.
1. Substantial Burden
To establish a violation under RFRA, a claimant must first
show that the Government “substantially burdened” his or her free
exercise of religion. 42 U.S.C. sec. 2000bb-1(a). A statute
burdens the free exercise of religion if it “puts substantial
pressure on an adherent to modify his behavior and to violate his
beliefs”. Thomas v. Review Bd. of Ind. Employment Sec. Div., 450
U.S. 707, 718 (1981). A substantial burden must be more than an
3 In addition to the compelling interest test provided for by
RFRA, petitioners rely on Miller v. Reed, 176 F.3d 1202, 1207
(9th Cir. 1999), to assert a hybrid-rights claim and apply a
strict scrutiny analysis. In Employment Div. v. Smith, 494 U.S.
872, 881-882, (1990), the Supreme Court excepted a hybrid-rights
claim from its rational basis analysis and thus recognized the
applicability of the strict scrutiny analysis where a law
“[involves] not the Free Exercise Clause alone, but the Free
Exercise Clause in conjunction with other constitutional
protections”. Petitioners’ argument for strict scrutiny analysis
here amounts to a request for application of the compelling
interest test set forth by RFRA. See, e.g., Hill v. Colorado,
530 U.S. 703, 748 (Scalia, J., dissenting)(2000), (referring to
“that stringent mode of constitutional analysis our cases refer
to as ‘strict scrutiny,’ which requires that the restriction be
narrowly tailored to serve a compelling state interest.”); see
also Kessler v. Commissioner, 87 T.C. 1285, 1290 (1986), affd.
838 F.2d 1215 (6th Cir. 1988).
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