57 Pages Posted: 5 Mar 2014 Last revised: 31 Mar 2014
Date Written: March 10, 2014
Religious Americans are substantially excluded from the political process that produces laws, and this prompts sobering questions about the reality of religious equality. Put simply, political exclusion threatens religious equality.
The exclusion is two-fold. It arises partly from the growth of administrative power, which leaves Americans, including religious Americans, no opportunity to vote for or against their administrative lawmakers. It also arises from section 501(c)(3) of the Internal Revenue Code. As a result of this section, even when law is made in Congress (or an elected state legislature), religious organizations are restricted in their freedom to petition and to campaign for or against their lawmakers. There thus is a broad exclusion of religious Americans and their organizations from the political process that shapes lawmaking, and Americans thereby have lost essential mechanisms for persuading their lawmakers to avoid burdening their religious beliefs.
Religious liberty thus comes with an unexpected slant. Courts blithely assume that America offers a flat or even legal landscape — a broad and equitable surface on which all Americans can participate equally, regardless of their religion. The underlying exclusion, however, tilts the entire game, so that apparently equal laws actually slant against religion. What is assumed to be a flat and natural landscape turns out to be an artificially tilted game.
The conceptual framing of religious liberty therefore needs to expanded. The central conceptual problem for the free exercise of religion is usually understood as the choice between exemption and equality — the choice between a freedom from equal laws, on account of one’s religion, and a freedom under equal laws, regardless of one’s religion. The conceptual problem, however, turns out to be more complicated. In addition to the constitutional choice between exemption and equality, one must also consider the role of exclusion.
Keywords: religious liberty, free exercise, exemptions, equality, exclusion, political process, First Amendment
Suggested Citation: Suggested Citation
Hamburger, Philip, Equality and Exclusion: Religious Liberty and Political Process (March 10, 2014). Columbia Public Law Research Paper No. 14-387. Available at SSRN: https://ssrn.com/abstract=2404626 or http://dx.doi.org/10.2139/ssrn.2404626