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![[PDF] Equality and the Free Exercise of Religion - CORE](https://pdfprof.com/Listes/28/82138-28216927395.pdf.pdf.jpg "[PDF] Equality and the Free Exercise of Religion - CORE")
C leveland State UniversityEn gagedScholarship@CSU C leveland State Law Review
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E quality and the Free Exercise of ReligionB ret BoyceU niversity of Detroit Mercy School of LawF ollow this and additional works at:#
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493
EQUALITY AND THE FREE EXERCISE OF RELIGION
BRET BOYCE*
I. INTRODUCTION....................................................................494 II. E XEMPTIONS AND THE SUPREME COURT.............................500 A. C onstitutionally Mandated Judicial Exemptions.........500 B. C onstitutionally Permitted Legislative Exemptions.....504
III. T
HE DEBATE OVER ORIGINAL UNDERSTANDING.................506 A. T he First Amendment...................................................507
1. The Framers and Ratifiers....................................507
2. St ate Constitutions................................................509
3. Ph ilosophical, Religious, and Political
D iscussions...........................................................510
4. Le gislative Exemptions........................................512
B. T he Fourteenth Amendment.........................................516 IV. R ELIGIOUS LIBERTY AND EQUAL TREATMENT....................520 A. C onstitutionally Compelled Accommodation..............520
1. Tex tualist Arguments...........................................521
2. The Claim of Priority for Religion.......................523
3. Pl uralism...............................................................524
4. In centives and Practical Considerations...............526
5. The Scope of Free Exercise Protection................528
B. C onstitutionally Permitted Legislative
Ac commodation...........................................................532
1. In stitutional Competence of Courts and
L egislatures...........................................................532
2. Sp ecific and General Legislative
A ccommodations..................................................536 V. I MPLEMENTATION OF RELIGIOUS EQUALITY........................538
A. D iscrimination and the Right of Expressive
As sociation...................................................................539 B. S acramental Drug Use................................................542 C. Acc ommodation in the Prisons....................................547 VI. C ONCLUSION .......................................................................549 * Associate Professor, University of Detroit Mercy School of Law. B.A. Yale University, J.D. Northwestern University, Ph. D. Brown University. The Author wishes to thank Ronald J. Krotoszynski, Jr. for his very helpful and thoughtful comments on this Article.
1Published by EngagedScholarship@CSU, 2009
494 CLEVELAND STATE LAW REVIEW [Vol. 57:493
I.
INTRODUCTION
Ever sinc e the mid-twen tieth ce ntury, when the Suprem e Court first began vigorously to enforce the Religion Clauses of the First Amendment,
1 the Religion
Clauses have been a source of continuing controversy. No issue has been more contentious than reli gious exemp tions from generall y applicable laws. In recent decades, the Court"s jurisprudence has undergone dramatic changes. In the 1960s and 1970s especially, the Court took an activist approach to the enforcement of both Religion Clauses.
2 On the free exercise side, at least in theory,
the Court applied strict scrutiny to neutral, generally applicable laws that incidentally burdened religious practices.
3 Unless the law, as applied to the religious adherent
claiming a burden, was "the least restrictive means of achieving some compelling state interest,"
4 an exemption would be constitutionally required. Under such an
approach, small minority religions stood to gain at the expense of more powerful religious groups (which were less likely to be burdened by general legislation) as well as nonbelievers. The effect of constitutionally compelled exemptions, as Steven Gey poin ted out, was to subordin ate the sta te"s goals to those of the exempte d religious adherent, to shift social burdens from adherents to nonadherents, and to require the state to subsidize religiously motivated behavior.
5 Yet paradoxically, on
the establishment side, the Court held that government sponsorship or support of private religiou s activity is pr ohibited,
6 especially limiting the most powerf ul
religious groups , which would other wise be bes t positioned to seek government sponsorship. The Cou rt itself did n ot shrink from observ ing that there w as a basic inconsistency in an expa nsive approa ch to both Religion Claus es.
7 T his led to
considerable confusion in the case law, and in practice, the Court never consistently applied its com pelled exemptions doctrine with the degree of vigor that its
1 The Firs t Amendment" s Religion Clauses state that "Congress sh all make no law
respecting an establishment of religion, or prohibiting the free exercise thereof." U.S.
CONST.
amend. I. Subsequent case law has made these principles applicable to all branches of the federal and state governments. The Religious Test Clause, which states that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States," id. art. VI, § 3, was an important limited precursor of the more general principle set forth in the Establishment Clause.
2 See Kathleen M. Sullivan, Justice Scalia and the Religion Clauses, 22 U. HAW. L. REV.
449, 452 (2000).
3 See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972).
4 Thomas v. Review Bd., 450 U.S. 707, 708 (1981).
5 See Steven G. Gey, Why Is Religion Special?: Reconsidering the Accommodation of
Religion Under the Religion Clauses of the First Amendment, 52 U.
PITT. L. REV. 75, 180
(1990).
6 See, e.g., Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947) ("Neither [a state nor the
Federal Government] can pass laws which aid one religion, aid all religions, or prefer one religion over another.").
7 See Walz v. Tax Comm"n, 397 U.S. 664, 668-69 (1970) (observing that either one of the
Religion Clauses, "if expanded to a logical extreme, would tend to clash with the other").
2009] EQUALITY AND FREE EXERCISE OF RELIGION 495
formulation seemed to require. But the basic tendency of the Court"s doctrine (if not its p ractice) in this perio d, a s Kathle en Sullivan sugg ests, was to treat religio us organizations "as distinctively powerful forms of private association" functioning as virtual "quasi-governments" enjoying "alternative jurisdiction" alongside that of the state. 8 In 19 90, after a p eriod of su bstan tial doctrinal d isarray , the Court sharply reversed course and began to adopt a posture of deference to legislative outcomes. 9 On the free exercise side, in Employment Division v. Smith,quotesdbs_dbs7.pdfusesText_5
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