Exploring Free Exercise Doctrine: Equal Liberty and Religious Exemptions
36 Pages Posted: 13 May 2011 Last revised: 27 Jul 2011
Date Written: 2010
Commentators have long argued over the meaning of the Free Exercise Clause and the basic question it now poses: To what extent should society accommodate religious exercise by making exceptions to generally applicable governmental laws for religiously motivated behavior? It is rare to find an absolutist on these issues. Few believe that religious exemptions are always appropriate; few believe that they are always inappropriate. The difficult tasks have been in drawing the line between appropriate religious exemptions and inappropriate ones, figuring out what types of doctrinal arrangements can best approximate that line, and deciding which levels and branches of government are justly charged with deciding these issues.
Over the past fifteen years, Professors Christopher Eisgruber and Lawrence Sager have built up a comprehensive theory that addresses these questions - a theory they call Equal Liberty. Equal Liberty is not just a theory of religious exemptions; it addresses the full range of Religion Clause topics. But Equal Liberty has special importance for those concerned with the Free Exercise Clause. Eisgruber and Sager represent the best of a new wave of theorists who attack religious exemptions. They do so principally neither on grounds of federalism or judicial restraint, nor on grounds of manageability or originalism. Rather, they attack religious exemptions on the general premise that they are fundamentally unfair to nonreligious people.
This piece examines certain questions that Equal Liberty raises that have gone relatively unexplored, focusing principally on matters of constitutional doctrine. It begins by raising questions about whether Equal Liberty can really be translated into a usable set of doctrinal principle. And from that initial point, it goes on to explore how, when it comes to Free Exercise, it is largely doctrine that divides us. We agree, for the most part, on how cases should be decided; we mostly agree on what the ideal state of religious liberty looks like. Our most intense disagreements, however, are about the doctrine we need to get us there. This review looks at those disagreements, to discover their roots, explore their significance, and examine their possible resolutions.
Keywords: Constitution, Free Exercise, First Amendment, Establishment, Employment Division v. Smith, religion, religious belief, doctrine, underenforcement, overenforcement
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