Religious exemptions for the non-religious

[Brownstein, Alan]

Eugene raises a fair point, but in a real sense it does not go nearly
far enough. Religious exemptions and accommodations may raise an issue
for those who argue that religious endorsements are constitutionally
problematic. They also raise concerns for those who argue that
discriminatory speech regulations and government distortions of the
marketplace of ideas are constitutionally problematic. (Many religious
practices have an expressive dimension to them and religious
institutions certainly promulgate particular messages and viewpoints.
How can they be freed from burdensome regulations that institutions
expressing competing secular messages are forced to obey?)
Further, religious exemptions also raise concerns for those who argue
that government should be allowed to subsidize religious institutions
and activities -- but only on the same terms as secular institutions --
and that preferential subsidies for religious institutions would violate
the Establishment Clause. Many exemptions free individuals and
institutions from regulations as to which there is a cost to compliance
(and eliminating a cost may be easily analogized to the granting of a
subsidy). Moreover, many exemptions have financial value in the sense
that they would be exchanged for substantial sums if a market was
permitted for their sale and purchase. (In the civil War, for example,
you could purchase a substitute to be conscripted in your place.) So, in
a real sense, a great many regulatory exemptions are a form of subsidy
or benefit for only religious individuals and institutions.

Of course, religious exemptions also provide critically important
protection for religious liberty, and in many cases, religious equality
as well. 

So what do we do when state action (religious exemptions and
accommodations) that protects important constitutional values such as
religious liberty and equality also conflicts with other important
constitutional values. I think we try to develop doctrine that reflects
our commitment to all of the relevant values that are at stake, to the
extent that we can do so. Sometimes these values overlap and reinforce
each other. But sometimes, as Eugene suggests, some imperfect balancing
out of inconsistent concerns will be necessary. Identifying exactly what
is the right balance is not an easy job, of course, (in part because
people assign different weight to different concerns) which is why
people who care about many of the values that are in play in issues
relating to the religion clauses often disagree. It is also why no one
test, like the endorsement test, is all that helpful in resolving the
entire range of religion clause issues that courts confront.

The alternative is to conclude that certain values don't matter at all
for constitutional purposes. I think that's the wrong answer because the
values in play are important and deserve to be taken into account. And,
as I suggest above, if we are talking about religious exemptions and
accommodations, a lot more than our concerns about religious endorsement
would have to be abandoned if we conclude that nothing on the debit side
of the constitutional ledger is significant.

Alan Brownstein

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, March 01, 2007 2:41 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions for the non-religious

	A question for those who argue that government endorsement of
religion violates the Establishment Clause on the grounds that such
endorsement makes those who don't adhere to the favored religion -- or
to religion generally -- feel like outsiders, and less than full members
of the political community:  Wouldn't the existence of religious
exemptions that are unavailable to secular people who have equally
deeply felt conscientious beliefs make such secular people feel like
outsiders, and less than full members of the political community?  
 
	After all, such a religious-observers-only exemption regime
would constitute tangible difference in treatment based on religiosity.
It might even constitute tangible difference in who goes to jail for
some conduct and who doesn't go to jail for the same conduct -- or who
goes to war to kill or be killed and who is spared.  Wouldn't such
tangible difference in treatment be felt even more deeply, and arouse
even more resentment, than the purely symbolic message sent by a creche
or some such?

	Of course, one possible response is that the Free Exercise
Clause mandates preferential treatment for religious objectors -- which
is to say that the secular should feel that, if they are made outsiders
or less than full members of the political community, they are made so
not by the actions of today's politicians, but rather by the
Constitution itself.  That seems to me to be little consolation.

	Another possible response is that we generally shouldn't much
care about this feeling of exclusion felt by the secular; but if that's
so, then why do we care about it under the Establishment Clause
endorsement test?

	Another possible response is that the secular should feel that
the benefits given the religious by the Free Exercise Clause are somehow
balanced out by the burdens imposed on them by the Establishment Clause.
But, first, the balance is far from perfect, especially as to particular
individuals and religious groups -- a secular conscientious objector to
the draft, for instance, would likely have felt that the burden imposed
on him by a religious-objector-only rule (which likely would have been
the rule had Harlan not taken a no-discrimination-in-favor-of-religion
view in Welsh) is hardly offset by a burden imposed on religious
objectors of no creches (or even no inclusion of religious schools in
evenhanded funding programs).  And second, if we're doing such rough
balance, how does it tell us what the proper set of allegedly
compensating discriminations would be?  Why not say that the proper
compensating level of burdens on religion is only a limit on funding,
and not a limit on endorsement?

	Eugene