The Case Against Legislative Codification Of Religious Liberty
Ira C. Lupu
George Washington University Law School
Published in Symposium on Federal and State Religious Liberty Legislation, Vol. 21 (2-3), Cardozo Law Review, pp. 565-593, December 1999
In response to a highly controversial Supreme Court decision (Employment Division v. Smith, 494 U.S. 872 (1990)), the U.S. Congress and a number of state legislatures have enacted statutes designed to protect the right to religion-based exemptions from general laws. The Supreme Court has invalidated in part one such federal law, but Congress is seriously contemplating a replacement and a number of states are actively considering their own versions of such a law. This paper argues, primarily on institutional grounds, that such legislation (state or federal) is both unnecessary and unwise. The first part of the paper argues that judge-made, constitutionally-based principles of religious liberty are more vital and dynamic than proponents of such legislation will allow, and that the results in practice of religious liberty statutes are considerably more feeble than these legislative proponents will admit. The second part of the paper argues that, even apart from this comparative assessment of the achievements of constitutional and statutory law on this subject, such legislation is intrinsically flawed as a method for protecting religious freedom. These flaws include the constitutional vulnerability of the legislation; the impossibility of drafting such legislation in ways which adequately guide the exercise of authority by judges and other decision makers; the tendency of such legislation to retard growth or cause atrophy in constitutional principles of religious liberty; and the hazards, constitutional and otherwise, of politicizing (as such legislation inevitably will) the enterprise of protecting religious liberty.
Number of Pages in PDF File: 31
Date posted: September 14, 1999