Smith and individualized exemptions

[Brooks Fudenberg]

On Wed, 12 Feb 1997, richard duncan wrote:

> I think Mike's [McConnell's] explanation of Sherbert as reconceptualized
in Smith is
> accurate. But Sandy's point remains--is the distinction between
> legislatively-defined exemptions for secular (but not religious)
> gratifications and open-ended "individualized" exemptions for secular
> (but not religious) gratifications a valid or even a coherent one?
>
> Suppose in Sherbert *the legislature* had defined the desire not to
> change professions as a "good" reason to refuse work. There were no
> individualized determinations, just the well-defined stautory
> exemption. So A, an unemployed law professor, refuses a job as a night
> manager at the local 7-11 because he does not wish to change
> professions. B, an unemployed convenience store manager, refuses a job
> at the same store because it required him to work on his Sabbath. A
> gets benefits; B is denied benefits. Should it matter under any coherent
> theory of Free Ex that in this case the denial is based upon
> well-defined statutory definitions of good and bad reasons?

Yes!  But in the opposite direction from that implicit in Prof.
McConnell's earlier post [which asked whether it should matter whether the
exemption is based on legislative, administrative, or judicial
decision-making].  Specifically, if we think the judiciary's greater
insulation from political pressures makes it more likely to give proper
weight to constitutional prohibitions, then we might find suspect a
legislative determination to exempt those claiming secular interest X, but not
free exercise interest Y.  In short, because the judiciary is more
insulated, we could find judicial declarations that interest X is exempt
(as in Sherbert) more presumptively correct than legislative declarations.


Brooks R. Fudenberg
University of Miami School of Law