Religious exemptions and undue preference for religion

[Perry Dane]

Eugene,

         I wonder if you're reading the court's footnote too 
broadly.  When the court says that "granting an exception to 
Cornerstone (or perhaps all parochial schools) based on the theory 
that the free exercise claims elevate Cornerstone (or all parochial 
schools) to a higher status than secular nonpublic schools-would be 
equally unacceptable under federal law," it might simply mean that 
such an exception would be "unacceptable" as a requirement of free 
exercise doctrine, not that it would be unconstitutional if required 
by a legislature.

         Even if the court did mean more than that, note that what 
Cornerstone is asking for is far removed from any sort of 
paradigmatic religion-based exemption.  Whatever burden the 
government is imposing on free exercise here is quintessentially 
"indirect."  Moreover, while I'm no great friend of the 
burden-benefit distinction, there surely are some free exercise 
claims, particularly when they involve alleged right to benefits 
rather than defenses against burdens, that are not only off the 
tracks on free exercise grounds but jump the tracks, so to speak, to 
the point of raising establishment clause concerns.  For example, it 
seems to me that if Mrs. Sherbert's religion not only forbade work on 
Saturdays but any work at all, and also forbade contributing to the 
unemployment insurance fund, her claim to unemployment benefits 
would, had it been accepted by the State, actually have raised the 
specter of an unconstitutional religious preference.  And I say this 
as someone who believes in a vigorous free exercise clause and 
continues to lament Smith and City of Boerne.

                         Perry



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Perry Dane
Professor of Law

Rutgers University
School of Law  -- Camden
217 North Fifth Street
Camden, NJ 08102

dane at crab.rutgers.edu
Bio: www.camlaw.rutgers.edu/bio/925/
SSRN Author page: www.ssrn.com/author=48596

Work:   (856) 225-6004
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