Criminalizing Charity: Can First Amendment Free Exercise of Religion, RFRA, and RLUIPA Protect People Who Share Food in Public?
7 U.C. Irvine L. Rev 291 (2017)
56 Pages Posted: 12 Dec 2018
Date Written: 2017
Despite the disturbing fact that more than fifteen percent of the U.S. populace suffered food insecurity in 2014, at least fifty-seven cities across twenty-five states had proscribed the unauthorized provision of food to hungry people in public. In such cities, people who publicly share food, without obtaining an onerous prior permit, risk arrest and prosecution for a misdemeanor. These “food-sharing” cases include a growing set of controversies, which sometimes involve litigation to challenge the city’s authority to criminalize people who publicly share food with those who hunger. The food-sharing cases include over a dozen judicial opinions, including several from the U.S. Courts of Appeals for the Ninth and Eleventh Circuits. After overviewing the jurisprudential and theoretical significance of the food-sharing cases, the Article proceeds in two major parts. First, it relates a partial history of food-sharing in the United States since 1985. Adapting the anthropological concepts of the “emic” and the “etic,” the Article explains how food-sharing activists can be categorized into two distinctive types based on how they typically describe their food-sharing practices: religiously-motivated activists tend to explain their activities under terms like charity, ministry, and works of faith; in contrast, politically-motivated activists tend to disdain terms like charity and instead prefer mutual aid or solidarity. These distinctive emic descriptions of food sharing contrast significantly with how cities, and courts, cognize such activity (e.g., homeless feeding, outdoor food distribution, social services, and various First Amendment doctrines, particularly the free exercise of religion and expressive conduct. In Part II, the Article argues that the emic–etic distinction appears to have predictive power: focusing on a set of food-sharing cases that featured religiously-motivated plaintiffs, the Article demonstrates that when a court adopts the plaintiffs’ emic terms, the plaintiffs typically prevail; in contrast, when courts disregard the plaintiffs’ emic terms and prefer the etic terms of a city defendant, or of First Amendment jurisprudence, they typically rule against the plaintiffs. Along the way, the Article accounts for how the Religious Freedom Restoration Act of 1993, subsequent state Religious Freedom Restoration Acts, and the Religious Land Use and Institutionalized Persons Act of 2000 offer greater protections for religiously-motivated food-sharing activists. Finally, it concludes by arguing for U.S. cities to stop criminalizing the charitable sharing of food in public.
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