California RFRA and discrimination exemption
MAULE.Prof.Law at LAW.VILL.EDU
Wed Jan 14 20:37:35 PST 1998
Gene suggests "Consider[ing] proposed religious freedom exemptions
one by one, and decide for each whether indeed the competing
interests justify the exemption" and that otherwise "the legislature
must face the fact that courts might well reach what the legislature
thinks is the wrong result." Thus, Gene proposes that
> Given this, it seems to me that the only responsible thing for
> the legislature to do is to anticipate the problems, and to set forth
> the right rule.
First, isn't the legislature limited by what the First Amendment
provides? And isn't a lot of the non-clarity that Gene mentions
attributable to the general nature of the First Amendment's language?
Second, Congress, the IRS, state legislatures and state revenue
departments have tried the "anticipate each situation" approach in
the tax area and the result is a thicket of sometimes
incomprehensible, and usually complex, rules that leave the average
citizen in dire anxiety about his or her rights and obligations. I
would hope a better approach or a better implementation is possible,
because the notion of an "Internal Religion Code" and its regs is
really really scary.
There may be a way to deal with this but it brings us back to the
discussion that Rick and I have had about drawing the boundaries
between individuals' respective rights.
Try this (a tad scary and just a discussion starter -- I'm not going
to lobby for it):
The act, failure to act, condition, or practices of any person that
arise from that person's stated religious belief, without inquiry
into sincerity, cannot be punished, restricted, prohibited,
conditioned, or otherwise precluded, unless and only to the extent
that the act, failure to act, condition, or practice infringes on a
fundamental right of another individual or a government's or
government official's efforts to protect the fundamental right or
rights of another individual or group of individuals.
Now we can begin listing fundamental rights. After all, the only
reason that a government ought to intrude on one person's rights is
to protect those of another person, and only (in my view) when the
other person's right is fundamental. Certainly life is a fundamental
right and thus the proposed(?) language would permit prohibition of
human sacrifice. But not animal sacrifice because (I may get into
trouble here) animals don't have fundamental rights. Likewise, it
would be permissible to prohibit a person from driving an automobile,
carrying a firearm, operating machinery, performing surgery, etc.
while under the influence of peyote consumed in a religious ceremony
because those prohibitions protect at least two fundamental rights of
others: their lives and their right to be free from bodily harm.
Of course, now, can I blow the trumpets and pound the drums at dawn?
Is my neighbor's right to sleep until 7 a FUNDAMENTAL right? Is my
neighbor's right to pray in a silent place a FUNDAMENTAL right?
To me the question of whether the legislature, the courts, or some
other group decides the question is secondary to the fact that the
question needs to be decided, and that deciding it on the basis of
all possible religious right v. any right scenario would take forever
and generate an IRC (R=religion) that would be frightening beyond all
Could/would/should the government have the power or obligation to
prevent the conflict of rights (hmmmm, interesting term) from arising
in the first place? Would "religion based zoning" that prevents the
trumpet and drum dispute be appropriate? If so, who gets to live in
the nicer/warmer/safer place?
Professor of Law
Villanova University School of Law
Villanova, PA 19085
maule at law.vill.edu
(610) 519 - 7135
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