52 Pages Posted: 13 Feb 2013 Last revised: 3 Aug 2013
Date Written: February 12, 2013
Twenty years after the Supreme Court's decision in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, uncertainty reigns in the lower courts and among commentators over the issue of constitutionally compelled religious exemptions. Despite the Court's general disavowal of such exemptions in Employment Division v. Smith, Lukumi appeared to breathe life into a potentially significant exception to Smith. Under that exception - which this Article calls the "selective-exemption rule" - the Free Exercise Clause may still require religious exemptions from a law when the government selectively makes available other exemptions from that law.
This Article addresses the key unresolved questions about the scope of the selective-exemption rule and challenges the broad interpretation of the rule that leading religious liberty advocates have been pressing in courts around the country. That broad interpretation, which played a prominent role in the recent animal-sacrifice case of Merced v. Kasson and has been further developed in the ongoing Stormans, Inc. v. Selecky litigation over emergency contraception, would go a long way to achieving a de facto reversal of Smith. But while there are credible arguments for reconsidering Smith and its "equal protection" interpretation of the Free Exercise Clause, those arguments should not be advanced through the backdoor of the selective-exemption rule. That rule was adopted as part of the Smith paradigm, and it only makes sense to interpret it within that paradigm. Accordingly, this Article makes the case for a more appropriately tailored reading of the selective-exemption rule - a reading grounded in the rule's origins as a tool to prevent intentional discrimination, and a reading that would enable the government to enforce animal welfare laws that have only an incidental effect of limiting religious animal sacrifice.
Keywords: Free Exercise Clause, Religious Exemptions, Animus, Discriminatory Intent, Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, Merced v. Kasson, Stormans v. Selecky, Generally Applicable, Individualized Exemptions, Categorical Exemptions, Contraception, Animal Sacrifice
Suggested Citation: Suggested Citation
Oleske, James M., Lukumi at Twenty: A Legacy of Uncertainty for Religious Liberty and Animal Welfare Laws (February 12, 2013). Animal Law Review, Vol. 19, No. 2, 2013; Lewis & Clark Law School Legal Studies Research Paper No. 2013-4. Available at SSRN: https://ssrn.com/abstract=2216207