A Critique of the Secular Exceptions Approach to Religious Exemptions

Abstract

Many scholars, some lower courts, and at least one Supreme Court justice support the idea that if a law contains secular exceptions, the Free Exercise Clause compels similar religious exemptions from the law. They argue, for instance, that if a police department with a no-beards policy allows exceptions for medical reasons, it must also allow those who wish to grow their beards for religious reasons to do so.

This Comment rejects the secular exceptions approach to religious exemptions. First, it argues that the secular exceptions principle is inconsistent with current First Amendment doctrine. In Employment Division v. Smith, the Supreme Court essentially eliminated religious exemptions from neutral laws of general applicability. Since laws with secular exceptions can be both neutral and generally applicable, the secular exceptions principle grants religious exemptions more broadly than Smith allows.

Even if the secular exceptions principle were consistent with Smith, courts should not adopt it as the constitutional rule. Under the secular exceptions principle, secular exceptions that undermine a law’s general interest make a law underinclusive and therefore not generally applicable. The lack of general applicability triggers strict scrutiny, so the court must grant the religious exemption unless the law is narrowly tailored to a compelling government interest. But because the law was already found to be underinclusive, it is not narrowly tailored to the interest, and so it necessarily fails the strict scrutiny test.

Since nearly all laws contain exceptions, this problem would lead to religious exemptions from some of the country’s most important laws—antidiscrimination laws, tax laws, and drug laws, to name a few. That outcome has never been and cannot be the correct understanding of the Free Exercise Clause.

Devine_6.2015
By uclalaw