General Applicability

[Mark Graber]

Another hypothetical on exceptions.  Officer Joe Bolton wants to
enforce the speech limit consistently.  He does, however, not give
speeding tickets to persons who make a plausible claim that they are
driving to the hospital with a very sick person and every second they
are late could jeopardize a life.  He does give speeding tickets to
persons who make a plausible claim that they are driving to a very
important meeting, and every second they are late could jeopardize
their career.  Today, Officer Bolton stops a speeding car.  The
driver makes a plausible claim that the passengers are late to a
religious service and every second they are late could, in their
judgment, jeopardize their soul.  Should he give the ticket?

May I suggest that general principle of neutrality is not going to
help much.  Rather, following Ronald Dworkin, we need to think of the
best principled reason for giving tickets to the speeding employee
but not the speeding doctor, and then determine on the basis of our
best principled justification of free exercise, whether a ticket is
warranted.  In the absence of these principles, neutrality does no
work, and once we have formulated the principles, we need not worry
about adding neutrality to the mixture.

Mark A. Graber
mgraber at bss2.umd.edu