Free Exercise Claims in Custody Battles: Is Heightened Scrutiny Required Post-Smith?

This Note discusses how free exercise claims made in custody disputes should be handled post-Employment Division v. Smith. Before Smith, the Supreme Court had held that free exercise claims should be evaluated using strict scrutiny. In Smith, the Court modified this analysis and stated that, in general, strict scrutiny is not required to evaluate free exercise infringement claims. However, the Court carved out several exceptions in which strict scrutiny analysis is still required. One such exception is hybrid rights, in which a free exercise claim is asserted in combination with another right. Free exercise claims made in custody disputes may create a hybrid right, since they may assert parental rights combined with free exercise rights. State courts, however, have been inconsistent as to whether they recognize hybrid rights in custody disputes. If these claims constitute hybrid rights, then Smith would entitle them to heightened scrutiny. This Note argues that state courts should explicitly recognize hybrid rights in custody disputes, but should not apply strict scrutiny if both parents are fighting for a right that only one of them can exercise. It argues that courts, at a minimum, should explicitly state the level of protection afforded and the source of that protection. For states that do offer free exercise protection, it then presents a framework that courts can use to determine when heightened scrutiny is appropriate.