Religion as Sword, But Not as Shield: Rectifying the Estrangement of Environmentalism and Religious Liberty
25 Pages Posted: 29 May 2020 Last revised: 8 Sep 2021
Date Written: May 1, 2020
Over the past thirty years, a remarkable but unacknowledged shift has occurred in the relationship between environmentalism and religious liberty. For a brief period in the latter twentieth century, the two fields stood in legal alliance. Relying on pre-1990 case law under which plaintiffs could attain strict scrutiny for incidental burdens on religious practice, litigants once enjoyed occasional success in enjoining governmental development projects harmful to both the environment and religious free exercise. This Essay terms such religious liberty claims advanced to protect the environment “Track I” claims. In its 1990 decision Employment Division v. Smith, however, the Supreme Court abandoned application of strict scrutiny to incidental burdens upon religious practice. Reacting to the Smith decision, Congress passed statutes intended to overrule Smith’s holding and to restore strict scrutiny for incidental burdens. Yet a paradoxical result ensued. Plaintiffs began to invoke religious liberty to gain religious exemptions from generally applicable environmental law. This Essay terms such claims advanced to gain exemptions from environmental protection laws “Track II” claims. Despite the resurgence of Track II claims, Track I claims have remained non-viable. The consequence has been the systematic use of religious liberty to evade environmental regulations, with no countervailing use to secure protections for the environment. This Essay documents the historical reasons behind that shift and proposes solutions to rectify the present disparity between Track I and Track II claims. If religion is to be a sword that can harm the environment, religion should also be a shield that can protect it, or else should exit the battlefield altogether.
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