Neutrality

[richard duncan]

Andy Koppelman writes:
> 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.
> ____________________

I *am* claiming that an exception for some religious claims but not
others flunks neutrality. A partial religious exemption facially
discriminates among religious claims (although perhaps not among
religious denominations). The idea of neutrality in Smith is one of
equality--neutrality assures that all religious claimants will have to
live with the regulatory scheme, that none will be given special
treatment. Partial exemptions enable the government to purchase the
silence of powerful religious factions--the state trades an exemption
in exchange for the religious institutions' support (or at least their
acquiescence) for a law that burdens the free exercise of religion of
those left outside the protection of the partial exemption.

This is exactly what happened in Nebraska a few years ago when gay
rights legislation was first proposed. The Catholic Church, a powerful
faction in Nebraska, came out against the legislation. Then, after it
was amended to exempt religious organizations, the Church withdrew
its support. Thankfully, this regulatory scheme did not pass. But
the point about neutrality is well-taken--the legislature was able to
eliminate opposition to this law by exempting some (powerful)
religious claimants while leaving other religious claimants
unprotected. Partial religious exemptions violate neutrality and they
*do* discriminate among religious claims. If Smith means what it
says, this should enable unprotected religious claimants (i.e.
individuals) to invoke the full protection of Free Ex and the
compelling interest test when ENDA is enforced against their
religiously motivated/compelled conduct. Religious neutrality ensures
that a political consensus for restrictive laws cannot be built by
trading exemptions to powerful religious institutions in exchange for
their support or silence. Equality means that these institutions will
have to live under the same rules they are willing to impose on other
religious claimants.



--
                   ----------
             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)