Exemptions for Religion Contained in Regulatory Statutes

Abstract

Discussions of the relation of religion and secular law of the United States often center on constitutional controversies arising out of the Religion Clauses of the First Amendment. That narrow focus, however, overlooks the practical and conceptual importance of the thousands of ways in which sub-constitutional sources of law such as statutes and common law rules also play a defining role in mapping the boundaries of civil and religious authority. This encyclopedia entry discusses, in particular, the many federal and state statutes that explicitly provide religious institutions and religiously-motivated individuals with exemptions from otherwise applicable secular law. Such statutes seek, variously, to accommodate religious conscience, recognize the relevance of religious norms, minimize intrusion into religious life, acknowledge religious diversity, adjust regulatory regimes to take religious facts into account, or simply oblige religious interest groups. Exemption statutes have been criticized on various grounds, and sometimes pose particular difficulties, though courts have generally indicated that they are not unconstitutional simply for setting out distinctive legal treatment for religion and religious persons. In any event, their existence and variety is a vital feature of the legal landscape of religion in the United States whose practical significance and larger meaning needs to be appreciated and understood. They also suggest, especially in the light of the recent constriction of the constitutional doctrine of free exercise, a particular legislative capacity, not only to respect religious conscience but to recognize, in an almost political sense, the diversity and dignity of non-state normative perspectives.

This entry does not attempt an exhaustive account of statutory exemptions. It does try to provide a framework for considering a range of examples, and to suggest how such provisions illuminate the law's effort to understand and accommodate the reality of religious life.

Keywords: Religion, Religion and Law, Free Exercise Clauses, Establishment Clauses, Statutes, Statutory Exemptions, Religion-Based Exemptions, RFRA, RLUIPA, neutrality