Neutrality

[Andrew Koppelman]

Whatever the merits of Rick's argument as an interpretation of Free
Exercise, I don't  think it speaks to my question.  Smith says the
legislature has free rein to enact (or not) religious exemptions so long as
they're not motivated by a desire to discriminate against a particular
religion, as the law in Hialeah was.  ENDA exempts religious institutions,
but doesn't exempt individuals in terms.  (But see RFRA -- a complication
which I set aside here.)  My question was whether it ought to.  I'd be
surprised if Rick is claiming that ENDA fails the neutrality test as
written, but would not fail the neutrality test if the exemption for
religious organizations were deleted.

The worry that animates my inquiry is the possibility that, if religious
exemptions were given to anybody who wanted one, the purposes of the
statute would be defeated.  If that's the case, then, rather than say that
all religious objectors lose, perhaps we'd be justified in drawing the line
in a way that exempts those religions that are most easily accommodated.
If that disadvantages some religions relative to others, we may need to
live with that.  See, e.g., Gillette v. US (1971)(denying conscientious
objector status to those who were unwilling to fight in unjust wars, and
confining the exemption to those whose religions were pervasively
pacifist).  But it's not even clear to me that certain religions would be
disproportionately disadvantaged by ENDA as written.  Certain faiths won't
want the exemption at all, of course, but among those that do, which ones
are more likely to invoke an individual, as opposed to an institutional,
exemption?

At 09:52 AM 10/14/97 -0500, Rick Duncan wrote:
>I have a few thoughts on the subject of a regulatory scheme that
>contains an exemption for religious institutions but not religious
>individuals. I dealt with this issue a bit in a Notre Dame piece a few
>years ago (69 N.D. at 422-26). I used a series of hypos involving a
>Prohibition regime. Suppose a state enacts a complete Prohibition
>policy with only a single exception--the law allows religious
>institutions (but not individuals) to possess sacramental wine for use
>in religious rites. And suppose this law is enforced against *an
>individual* who wishes to use sacramental wine at home for weekly
>communion with his family or as part of a small Bible study group. Is
>this law religiously neutral under Smith?
>
>My conclusion is no--under Hialeah and McDaniel v. Paty this law fails
>neutrality because it imposes "special disabilities on the basis of
>religious views or religious status." Father Murphy can get hold of
>sacramental wine for communion in Church, but Mr. Murphy can not get
>the wine for communion at his private devotionals.
>
>Similarly, an employment discrimination law that exempts religious
>institutions but not discrimination by individuals based upon
>religious motivation (or religious duty) also flunks the test of
>neutrality. Andy's attempt to distinguish between religious
>institutions and secular businesses misses the point. Free Exercise
>protects religious *exercise* even when that exercise is part of what
>some might be pleased to call the secular world. Imagine a devoutly
>religious printer who refused to print copies of Nazi hate literature
>or pornographic (non-obscene) books. If the law required printers to
>serve all customers who tender the normal printing fees, would this
>person have a Free Ex claim for an exception? Assuming the law is not
>generally applicable, the answer must be yes. His business may be
>"secular" but his refusal to print the Nazi material is based upon his
>religious objections to hate speech (or to pornography in the other
>hypo). Similarly, children attending a "secular" public school do not
>check their free ex rights at the schoolhouse door--even though they
>are engaged in a "secular" activity (public school), they may be
>entitled to religious exemptions from any number of requirements so
>long as they can establish that their objection is based upon
>religious motivation or duty.
>--
>                   ----------
>             Rick Duncan (rduncan at unlinfo.unl.edu)
>
>"So if I stand let me stand on the promise that You will pull me
>through, And if I can't let me fall on the grace that first brought me
>to You, If I sing let me sing for the joy that has born in me these
>songs, But if I weep let it be as a man who is longing for his Home."
>                 --Rich Mullins (October 21, 1955-September 19, 1997)
>

________________________________________

Andrew Koppelman
Assistant Professor
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
akoppelman at nwu.edu
________________________________________