Constitutional Anomalies or As-Applied Challenges? a Defense of Religious Exemptions

By Barclay, Stephanie H.; Rienzi, Mark L. | Boston College Law Review, January 1, 2018 | Go to article overview

Constitutional Anomalies or As-Applied Challenges? a Defense of Religious Exemptions


Barclay, Stephanie H., Rienzi, Mark L., Boston College Law Review


Introduction

Religious exemptions create an "anomaly" within our legal system- an unfair special privilege to ignore the laws everyone else must obey.1 Worse still, protecting the rights of diverse religious claimants in our nation will "be courting anarchy" by turning our law into "swiss cheese" and inviting a tidal wave of litigation.2

So goes one of the most common refrains raised by critics of religious exemptions. Some prominent free exercise cases have traded on these assumptions, most notably the famous and controversial case of Employment Division v. Smith2 Many of the recent criticisms of religious exemptions rely on these assumptions, both in the context of exemptions offered constitutionally or statutorily through laws such as the Religious Freedom Restoration Act ("RFRA").4 And these arguments are being made with increasing frequency and volume in the wake of Burwell v Hobby Lobby Stores, Inc.,5 and now in anticipation of Masterpiece Cakeshop, Ltd. v Colorado Civil Rights Commission6 But are these arguments really accurate?

A closer look at religious exemptions cases-particularly in comparison with other types of First Amendment cases-shows that the claim of unfair favoritism is not correct. This Article presents the claim that religious exemption requests are just a version of what is generally thought of as one of the most common, modest, and preferred modes of constitutional adjudication: the as-applied challenge. This is true regardless of whether the reli1 gious exemptions are offered constitutionally or through statutes such as RFRA. Furthermore, under this form of as-applied adjudication, courts regularly provide identical exemptions in the context of expressive conduct that critics fear in the context of religious exercise protections.

For example, in religious exemption cases, as in other expressive conduct as-applied challenges, the decision-maker is asked to find that a constitutional right would be infringed by a particular application of an otherwise valid law not specifically aimed at protected activity. The remedy in both contexts is a court order protecting the exercise of the constitutional right, but otherwise leaving the law in place to apply to other circumstances that may arise. In fact, the aspect of religious exemptions that generates most of the criticism-the limited carve-out from a law that otherwise remains in place to apply to others-has been widely praised elsewhere as making asapplied challenges preferable to more aggressive constitutional remedies, such as facial invalidation.7

Furthermore, there are deep structural similarities between the asapplied challenges in the expressive realm and the religious exercise realm. Thus, far from being problematic anomalies "in tension with other constitutional principles," the Supreme Court has described limited carve-outs as "the basic building blocks of constitutional adjudication."8 When religious exemption requests are properly understood as as-applied challenges, they actually look quite pedestrian, particularly in comparison to how constitutional challenges work to protect other First Amendment interests.9

But what about the concern that providing religious exemptions will result in our society "courting anarchy?" Is there something uniquely pervasive and dangerous about religious exemption requests? Is it true that the diverse religious views in our country mean we will face an "endless chain of exemption demands" that are much more expansive than other types of First Amendment activity?10 And particularly in the wake of Hobby Lobby, will we face a tidal wave of litigation by an endless line of religious objectors who then become a law unto themselves and strike down government action at every turn?

Our original empirical analysis suggests otherwise.11 The data suggests that expressive claims are much more pervasive than religious claims, both in absolute terms and as a percentage of all reported cases. …

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