San Diego Law Review

Do Religious Exemptions Save?

Author(s)

Maimon Schwarzschild

Editor(s)

Faculty editor: Larry Alexander

Details

Publication Law Review
Volume 53
Issue 1
Start Page 185
Month March
Year 2016
Type Article
Subject Area

Abstract

Religious Americans—and many advocates, politicians, and scholars sympathetic to them—have strongly, even fervently, supported “special accommodations” or exemptions from otherwise applicable laws, when compliance with these laws is claimed to be inconsistent with religious obligation or belief. When the United States Supreme Court held—notably in the 1990 case of Employment Division v. Smith—that the free exercise clause of the First Amendment does not usually require such exemptions, Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 by unanimous vote in the House—better than the Declaration of War after Pearl Harbor—and by almost unanimous vote in the Senate, and many state legislatures have done likewise. The thrust of these laws is that “accommodation” or exemption should presumptively be available from the requirements of any law, if compliance with the law would substantially burden someone’s free exercise of religion, unless there is a “compelling state interest” in not offering an exemption. These laws aroused little public or academic controversy until after 2012, when claims for exemption were conspicuously invoked in behalf of conservative Christians.

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