Why Majority Religions Should Not Be Accommodated

Abstract

This Essay, prepared for the Iowa Law Review’s 2022 Symposium on the Future of Free Exercise, argues that religious exemptions to generally applicable law (or overly generous ‘most favored nation’ interpretations of the concept of religious discrimination which amount in practice to exemptions) should not be extended to members of faith groups with sufficient political, economic, or social power to defend themselves in the democratic process.

The case against such exemptions begins with their best defense. From the standpoint of rule of law theory, the best defense of religious exemptions focuses on the risk that adherents to minority faiths may have their interests disregarded by dominant social and political groups; such a defense does not apply to exemptions for powerful faith groups. Moreover, members of groups with substantial political, social, and economic power can use exemptions not to protect their own freedom and equal standing but to undermine the freedom and equal standing of others, a dynamic prominently illustrated by litigation over contraception coverage requirements under the Affordable Care Act.

Unfortunately, the courts are unlikely to be willing to bear the epistemic burden of sorting exemptions claims by the power of those making them. In view of the likely impending fall of the Employment Division v. Smith doctrine, under which exemptions are not required under the Free Exercise Clause, the argument of this Essay suggests a substantial risk that Free Exercise jurisprudence may actually undermine rather than protect the freedom of those who are not adherents of powerful religions—particularly secularists and adherents of very small and unconventional religions such as Wicca, the Satanic Temple, and others—to pursue their conceptions of the good and the fulfillment of their moral values in their own lives. The most likely future for Free Exercise doctrine is to make those of us who are not members of sizable mainstream Abrahamic religions less free.

Keywords: Free exercise, rule of law, religion, freedom, equality, religious exemptions, religious accommodations, majority religions, minority religions, Religious Freedom Restoration Act, Hobby Lobby

JEL Classification: K10, K30, K40