Religious exemptions — a guide for the confused

[rug]

By Eugene Volokh
March 24 at 7:32 am

The Hobby Lobby case is about to be argued this week, so talk of religious exemptions is in the air. But what exactly is the law here, even beyond the particular details of Hobby Lobby? When can religious objectors go to court to get exemptions from generally applicable laws (whether drug laws, employment regulations, driver’s license photograph requirements, or whatever else)?

Glad you asked! There’s no simple answer, but here are a few commonly asked specific questions, with answers that can help you navigate the complexity.

1. What’s with religious people getting exemptions? I thought the Supreme Court said that wasn’t required. For most of American history, courts generally didn’t see the Free Exercise Clause as requiring exemptions for religious objectors. But in Sherbert v. Verner (1963), the Supreme Court said that such exemptions were presumptively required, unless the government could show that denying the exemption was necessary to serve a compelling government interest.

Then, in Employment Division v. Smith (1990), the Supreme Court changed its mind, by a 5-to-4 vote. The Free Exercise Clause, the court held, basically just banned intentional discrimination against a particular religion or religious people generally. With a few exceptions (such as for churches’ decisions about choosing their clergy), religious objectors had to follow the same laws as everyone else, at least unless the legislature specifically created a religious exemption.

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/24/religious-exemptions-a-guide-for-the-confused/

[Proud Public Servant]

1. Slate did a great piece on this

The gist: if corporations are people (and they are in this case), then the religious beliefs of the owners are irrelevant, because it's the corporate person "Hobby Lobby" that provides the medical plan, not its owners; therefore, the only relevant question is whether the contraceptive mandate violates the corporate person's religious beliefs -- and since Hobby Lobby was not incorporated with any religious beliefs, there's nothing to violate. I just hope SCOTUS sees it that way.

http://www.slate.com/articles/news_and_politics/jurisprudence/2014/03/corporations_are_people_and_that_s_why_hobby_lobby_should_lose_at_the_supreme.html

[rug]

3. Thanks for the link.

[cbayer]

2. Long, but an excellent resource that appears well researched

and accurate.

We shall see.