108 Iowa L. Rev. 2153 (2023)
This Essay argues that religious exemptions to generally applicable law (or overly generous ‘most favored nation’ interpretations of the concept of religious discrimination—which amount in practice to exemptions), also known as “accommodations,” should not be extended to members of faith groups with sufficient political, economic, or social power to defend themselves in the democratic process (“majority religions”).
The argument begins with the best defense of accommodations. From the standpoint of the normative principle known as “the rule of law,” religious accommodations protect adherents of minority faiths from having their interests disregarded by dominant social and political groups. In the absence of accommodations, religious minorities may be subject to law that does not genuinely treat them as free and equal members of a pluralistic community. However, such considerations cannot justify accommodations for powerful faith groups which are capable of protecting themselves outside the legal system and whose members are unlikely to have their interests disregarded by legislators. Moreover, members of groups with substantial political, social, and economic power can use exemptions not to protect their own freedom and equal standing, but to undermine the freedom and equal standing of others, a dynamic prominently illustrated by litigation over contraception coverage requirements under the Affordable Care Act.
Unfortunately, the courts are unlikely to be willing to bear the epistemic burden of sorting exemptions claims by the power of those making them. In view of the likely impending fall of the Employment Division v. Smith doctrine, under which exemptions are not required under the Free Exercise Clause, the argument of this Essay suggests a substantial risk that Free Exercise jurisprudence may actually undermine rather than protect the freedom of those who are not adherents of powerful religions—particularly secularists and adherents of very small and unconventional religions such as Wicca, the Satanic Temple, and others—to pursue their conceptions of the good and the fulfillment of their moral values in their own lives. The most likely future for Free Exercise doctrine threatens to make those of us who are not members of sizable mainstream Abrahamic religions less free and less equal.