Religious freedom and conscientious objection

[Volokh, Eugene]

        I was wondering whether I might try to focus the conscientious
objection discussion a little.  I'm not sure what sorts of conscientious
objection are worthier or less worthy, and I'm not sure we can really
come up with much of an answer on this list.  But I do think it's
eminently on-topic to inquire into (1) when (if ever) a judge is
*required* under an exemption regime (constitutional or statutory) to
cut some slack to conscientious objectors, and (2) when (if ever) a
judge is *permitted* to cut such slack.

        I do think that most on the list will agree that an exemption
regime does *not* require a judge to exempt religiously motivated
trespassers or blockaders from generally applicable trespass laws or
obstruction laws.  (Am I correct?)  But what about parole conditions,
which often ban not just trespass but otherwise lawful activity that the
judge may feat might lead to trespass?

        Perhaps Marty is right that even pre-Smith these *should* have
been subjected to Sherbert "strict scrutiny," but *would* have been
upheld even under such scrutiny.  But as I read the cases, these
conditions were not in fact subjected to strict scrutiny, but were
reviewed under a more lenient test.  RFRA and state RFRAs might thus
change the analysis, given their specific requirements of strict
scrutiny. And it seems to me that even under a "feeble in fact" strict
scrutiny, a ban on coming within 500 feet of an abortion clinic would be
struck down; or is there some justification for it that I'm missing
here?

        As to (2), this seems to me the return of the old "Does the
Establishment Clause prohibit religion-specific exemptions?" question.
I'd say that if religion-specific RFRAs are constitutional, it seems to
me that exemption of a parolee's religious practices from restrictions
imposed by parole conditions (e.g., "We'd normally impose a
don't-come-within-500-feet-of-a-clinic restriction, but when your
religion requires such conduct, we'll exempt you from this normal
restriction") would also be constitutional.  Or is there some reason why
the Establishment Clause would ban such exemptions, but allow RFRAs?