Tara A. Smith (University of Texas at Austin) has posted Religious Liberty or Religious License? Legal Schizophrenia and the Case against Exemptions (Journal of Law and Politics, Vol. 32, Fall 2016) on SSRN. Here is the abstract:
This paper seeks to demonstrate that religious exemptions are unjustified in theory and corrosive, in practice. By splintering the ultimate sovereignty of a legal system, they fracture its integrity and undermine its ability to fulfill its mission.
My analysis proceeds from the function of the legal system – which is the basis of the system’s authority – to show how the practice of granting standing permission for some people to violate generally applicable laws is inimical to that system’s efficacy and an abuse of its authority. The injection of conflicting directives to the officials charged to enforce the law (Go by the law; Go by those people’s consciences) necessarily subjectivizes the use of the government’s coercive power, since those officials have no principled means of deciding between the two directives. The tremendous proliferation of exemptions over the years testifies to the absence of an objective standard for governing this.
After establishing the central failings of exemptions, the paper takes up four specific arguments that are frequently offered in their defense: appeals to First Amendment text, the ideal of equality, the ideal of personal liberty, and the profound value of religious identity for many individuals. Careful examination demonstrates that none of these successfully justifies exemptions.
Finally, the paper considers the grounds on which differential application of generally sound law might ever be appropriate, finding an important difference between religiously based exemptions and other legitimately exceptional treatment.