Kenneth Einar Himma (University of Washington - School of Law) has posted Why Religious Freedom Does Not Warrant Protection by a Special Right (Kenneth Einar Himma, Miodrag Jovanović, and Bojan Spaic (eds.), FUNDAMENTAL RIGHTS: JUSTIFICATION AND INTERPRETATION (The Hague: Eleven International Publishing) 2015, Forthcoming) on SSRN. Here is the abstract:
I argue that religious worship does not necessarily warrant legal protection in the form of a special constitutional right. To justify protecting an interest with a special right to X, three conditions must be satisfied: (1) the relevant interest must arise from features distinctive to X; (2) the relevant interest must be sufficiently strong to warrant a special right to X; and (3) we must have some plausible reason to believe that the relevant interest can actually be threatened. I argue condition (3) fails with respect to justifying a special right to religious worship. Accordingly, religious freedom warrants constitutional protections that are derived from the rights to conscience, belief, association, speech, and autonomy. As such, different interests from those traditionally associated with the interest in religious freedom must be considered when deciding, e.g., whether the law should allow a pharmacist, on the strength of her religious views, to refuse to fill a prescription for birth-control pills.