State Rfras and the Intermediate Questions of Religious Exemptions--A Research Agenda with Test Suites
63 Pages Posted: 6 Jun 2000
Date Written: Undated
Should courts carve out religious exemptions from generally applicable rules? Does the Constitution command this? If it doesn't, should legislatures enact statutes that fill the gap? These might be called primary questions of religious freedom law, and they have been much debated. To some extent, they have recently been resolved by legislatures: Religious exemption statutes (commonly known as RFRAs) now bind the federal government and the governments of several states.
But between these oft-discussed primary questions and the likewise heavily debated specific questions related to particular proposed exemptions--exemptions from antidiscrimination laws, weapons laws, drug laws, compelled testimony laws, and the like--lies a range of intermediate questions. How does RFRAs' across-the-board strict scrutiny of governmental burdens on religion apply to government employment, government property, or government-run schools? What exactly does "least restrictive means of furthering [a] compelling governmental interest" mean? How should courts deal with laws aimed at protecting nontraditional private rights, such as the right to be free from marital status discrimination in housing? Does it violate the Free Speech Clause to give more protection to religiously motivated speech than to nonreligiously motivated speech?
These intermediate questions have been comparatively underdiscussed even in the pre-Smith era; and in any case the answers to them might well be different under the state RFRA regime than under the constitutional exemption regime. In this article, I want to briefly identify--though definitely not resolve--some of these relatively blank spots on the religious freedom map, and perhaps provide something of a plan for future research. For each of these areas, I will also suggest some concrete cases that I think pose particularly tough challenges--what computer programmers call a "test suite" that can be used to check whether a particular proposed doctrine makes sense.
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