Scopes of Religious Exemption: A Normative Map

Abstract

Religious exemptions take a variety of forms, with distinct logical shapes and normative underpinnings. This paper identifies eight ideal types of religious exemptions, grouped into three larger rubrics, representing a series of different analytic and justificatory structures, to help make sense of what might otherwise seem to be mysterious discontinuities and inconsistencies. The paper suggests how the various types can illuminate each other and how surveying the sequence as a whole might say something about the encounter of religion and state and the power of the legal imagination. The payoff or punch line is that the first, most obvious and straightforward, category of religion-based exemptions is also the most radical; that some of the other categories are tamer precisely to the extent that they introduce a wider and more complex range of values; but that the excursion in the end will necessarily come full circle to where it began.

Keywords: Religious Exemptions, Religious Liberty, Free Exercise, Analogy of Dignity, Legal Pluralism, RFRA, Religious Institutional Autonomy, Establishment Clause, Sovereignty, Double Coding