COMMENT
Freeing Exercise at Expression's Expense: When RFRA Privileges the Religiously Motivated Speaker
Erin J. Cox* 
56 UCLA L. Rev. 169

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Abstract

Congress and more than a dozen states have statutorily expanded the scope of religious liberty beyond that provided for in the U.S. Constitution. These Religious Freedom Restoration Acts (RFRAs), modeled closely after the federal progenitor, afford heightened protection to religious objectors by mandating that laws substantially burdening religious exercise pass strict scrutiny. In this Comment, I analyze how courts should address claims for exemption under religious freedom statutes when the religious exercise to be accommodated is speech. When applied to laws that are otherwise valid under a less rigorous standard, RFRAs discriminate in favor of religiously motivated speech. The literature has largely focused on whether this privilege afforded to religious viewpoints violates establishment and free speech principles. I aim to show that although RFRAs’ speaker-based privilege is constitutionally defensible, the government nonetheless has a compelling interest in promoting equality in speech opportunities among speakers. In considering requests for accommodation of religiously motivated speech, the government should assert its countervailing interest in enforcing the law. However, not all religious exercise that can be conceptualized as speech would yield harms of speaker inequality and marketplace distortion if accommodated. I develop a heuristic to guide courts in applying the government’s compelling interest in expressive equality by identifying situations in which accommodation would either advantage religious viewpoints in public debate or foster religious communities. The following discussion of these issues adds a new perspective to the debate concerning RFRAs’ application to speech, and strikes a balance between religious liberty and expressive equality.


* Senior Editor, UCLA Law Review, Volume 56. J.D. Candidate, UCLA School of Law, 2009; B.A., University of California at Berkeley, 2005.

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