Excluded Groups, Limited Exemptions and Limited Recognition, and Compelling Interest

continued from Official Recognition and Special Rights

This post explains how recognition of an official (basic) 'Free Exercise' right requires that the government exclude some groups from the special rights it grants to officially recognizes religions. I also consider and reject a few counter-arguments asserting that there is a way in which the government might fairly and justly grant special rights (through religious exemptions) to certain groups recognized as religious but not to all groups.

Excluded Groups

I have shown that state recognition of free exercise as a fundamental right requires that new rights (derived from this fundamental right) be granted to members of religious groups. In practice, this requires that the state not recognize every group that might claim religion status as a religion. In a state that gives official recognition to religions but does not grant any special rights (meaning it does not recognize free exercise as a fundamental right), exclusion is not a problem - there is no harm in adding another group name to the list of official religions because nothing follows from that. But because a state recognizing a fundamental right to free exercise must grant at least some new rights to members of religious groups (if it does not, it is not recognizing free exercise as a fundamental right), there is great incentive for individuals to belong to a religion that might benefit them with some useful rights.

Hirsch mentions the case Oregon v. Smith, a case related to sacramental use of peyote by Native Americans ("Let Them Eat Indicidentals: RFRA, The Rehnquist Court, and Freedom of Religion"). Though the case does not directly relate to drug laws, it brings up the issue of whether or not Native Americans ought to be allowed to use peyote (which is otherwise illegal) in religious ceremonies. In any state that prohibits certain drugs, there will likely be a significant portion of the population that would be happy to find a way to get around those laws. In a state granting a religious exemption to a law prohibiting peyote, there would probably be a rush to the Office of New Religion Registration if that state would add just any group to the Official Religion List.

So states must exclude some groups requesting classification as a religion. If they did not, the fundamental right to free exercise would become irrelevant. Any law worth being exempted from would in effect simply become void from all of the groups seeking religious status for the purpose of getting an exemption. States would have to refuse some (or most) of the groups seeking religious status for these reasons.

Limited Exemptions and Limited Recognition

A state might seek to overcome the difficulties of laws becoming in effect void from too many exemptions by making it harder for a group to get an exemption from a law or by making it harder for a group to gain official recognition as a religion. The first method might only allow religious exemptions to a law when that law was shown to prevent individuals from adhering to required practices of religion, and the second could filter out groups whose allegedly religious beliefs did not seem sincere enough or important enough to them to warrant the granting of new rights.

Both of these possibilities seem problematic, however. It is not clear that it would be much less of a violation of a fundamental right to free exercise for an optional religious practice to be prohibited than it would for a religiously required practice to be prohibited. In the first case, it is true that the law would force an individual to violate her religious beliefs. But the second case may effectively prevent a person from practicing her religion at all, even if this is not a direct violation of her beliefs. I deal with the second possibility, limited recognition, in a later section.

Compelling Interest

The option of only allowing religious exemptions when not doing so would force individuals to violate their religious beliefs is too strong for some. Hirsch seems to favor the "compelling interest" test adopted in Sherbert v. Verner. By this test, whenever a law puts a "substantial burden" on the practice of one's religion (which includes optional practices as well as required), a religious exemption should only be denied when there is a compelling government interest in enforcing the law despite its burden on religious practices ("Let Them Eat Indicidentals: RFRA, The Rehnquist Court, and Freedom of Religion").

This test would clearly deny religious exemptions to laws against murder, assault, theft, etc., but it is unclear how many other laws would survive it. If the high rate of overturning for laws subjected to the similar test of strict scrutiny by the courts is any indication, a sizable portion of U.S. law would be subject to modification by religious exemptions. If a large portion of the population converted to some divinely-inspired libertarian-type religion, their beliefs might well justify their being exempted from the majority of laws on the books if by the compelling interest test.

This possibility, or the possibility of multiple religious groups representing a large portion of the population each being entitled to a religious exemption from certain laws, raises another issue. It may not cause a problem for a small minority religious group to be exempted from some laws. But problems might arise if a large portion of the population was exempted. What would the state do in such a case? It could deny exemptions to any group, but this seems unfair - why should one group be denied a right they would otherwise be granted just because another group can make a claim to be granted that right as well? At the same time, it seems problematic for the state to pick which religious groups are more deserving of a particular right when all groups might feel justified in claiming it. But the state would have to pick one of these options if it could only allow a certain portion of the population to be exempted from a law before serious problems arose.

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