Free Exercise Exemptions: Required? Permitted?

I notice that a former student of mine (Northwestern Law) has posted what looks to be an interesting piece on SSRN:

"Equality and the Free Exercise of Religion"

Cleveland State Law Review, Vol. 57, p. 493, 2008

BRET BOYCE, University of Detroit Mercy - School of Law

Email: [email protected]

The most contentious issue in constitutional free exercise doctrine is whether exemptions for religiously motivated conduct are constitutionally required or permitted. For decades, the Supreme Court’s jurisprudence in this area has been in considerable disarray. In recent years the Court has increasingly rejected the notion of constitutionally required religious exemptions, but shown considerable indulgence for legislative exemptions. This Article argues that while the Free Exercise Clause confers the highest protection on religious belief, expression, and association, it requires equal treatment of all in the regulation of conduct, regardless of their religious beliefs or lack thereof.

The common claim that the original understanding of free exercise requires exemptions is unsupportable, and the claim that it permits such exemptions is less than convincing. While some exemptions were enacted in the founding era, their significance and probative value is limited, especially because the First Amendment did not apply to the states. Significantly, many objected to such exemptions as violations of religious equality. Nor is there significant historical support for the widely-accepted claim that the Fourteenth Amendment, under which the Religion Clauses have been applied to the states, was understood to alter their original meaning.

The textual, religious, and theoretical arguments advanced to justify constitutionally compelled exemptions are unpersuasive. Proponents of such exemptions typically argue that they are required unless the government interest at stake is compelling, which would eviscerate the rule of law by making compliance optional in most cases. They also argue that even where not required, such exemptions should be permitted unless they create incentives to practice religion. But this is incoherent - all religious exemptions create such incentives.

Recent congressional statutes such as RFRA and RLUIPA have sought to resuscitate the application of the compelling interest standard to a vast range of federal and state legislation. Recent Supreme Court decisions upholding such measures are deeply troubling. The Court’s decision extending immunity from the drug laws under RFRA on a religiously discriminatory basis embroiled it in policy determinations which it was ill-suited to make. Its decision upholding RLUIPA in the prison context extended special privileges to violent and racist religious organizations that are not enjoyed by their peaceful secular counterparts. These decisions pay scant regard to the constitutional requirement of equal treatment. The free exercise of religion requires equal and impartial treatment of all regardless of their beliefs, not a patchwork of special privileges, favors and exemptions.

Downloadable here.