101. DISPELLING THE RFRA SHIBBOLETH: AFFIRMING RELIGIOUS FREEDOM AND EXPRESSIVE RIGHTS.
- Author
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deBoer, James
- Subjects
RELIGIOUS Freedom Restoration Act of 1993 (U.S.) ,ZERO sum games ,FREEDOM of religion ,LEGAL judgments ,INSTITUTIONALIZED persons - Abstract
Is the Constitution big enough to guarantee the rights of small or less popular religions as well as of employees, tenants, and other dependents of religious exemption claimants? This paper will demonstrate how federal First Amendment jurisprudence has created the paradox of a zero-sum game between these two relatively marginalized and powerless groups. First, the history of free exercise cases and related legislation will show how--in this area of law as in many others--the social context of the claimants is critical in understanding the Court's attitudes and reasoning; Supreme Court decisions consistently responded to and shaped public opinion for better or worse. And, throughout the second half of the twentieth century, the Court persistently drew on implicitly Christian concepts to evaluate the religious claims of non-Christian litigants, also evincing a preference for Euro-white ethnocentrism over religionists of other backgrounds. In response to developments in Supreme Court interpretation, Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA) and then the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), which have served as the principal engines for free exercise claims in the intervening decades. The Roberts Court has instituted several profound shifts in free exercise jurisprudence. Perhaps most importantly, it has been sharply circumscribing courts' roles in evaluating religious claims. Beginning with its own cases, the Court has articulated a basic ethos of religious freedom for all who seek it as the default. This all-comers orientation has been a welcome change for members of minority religions. But the consequences of a "no questions asked" religious exceptionalism may well be devastating for the employees and tenants of religious objectors. This paper, therefore, proposes two insights for an alternative framework for assessing freedom of religion claims. First, returning to the concerns animating the watershed mid-twentieth century religious freedom cases, a claimant's religious minority status ought to have some bearing on the handling of their case; a religionist whose faith practices are well represented in and familiar to Congress, courts, and society at large is in a constitutionallycognizably different posture than, for instance, members of a small religious community that consists largely of racial minority non-citizens. Second, the right of free exercise stemming from the First Amendment must be interpreted in congruence with the entirety of the rights of conscience and expression guaranteed therein. Incorporating these insights could serve as a corrective for the accustomed privileging of religious claimants to the detriment of impacted third parties, such as employees. [ABSTRACT FROM AUTHOR]
- Published
- 2023