What can judges and lawyers learn about religion from those whose field is religious studies, and from others who can illuminate the phenomenon of religion? Using examples provided in Winnifred Fallers Sullivan's paper, I want to place this general question within the fabric of free exercise law.
What I say assumes that some legal issues she raises have reasonably clear answers. Given the cavalier way the Supreme Court turned free exercise law upside down in Employment Division v. Smith, and given its harsh reception of the Religious Freedom Restoration Act (RFRA), which had received overwhelming Congressional support, little in this area may be clear. Nonetheless, when Supreme Court resolutions are supported by powerful reasons, I take them as provisionally settled.
In legal terms, the issues that Professor Sullivan covers include sincerity, the borders of religion, substantial burden, and compelling governmental interest. Claims that a generally valid law imposes an unacceptable restriction on religious exercise have a typical structure. That structure is the same whether the claim is made under a state constitution generously interpreted to protect religious exercise, under the pockets of constitutional free exercise claims that remain after Smith or under RFRA. (The Supreme Court has not addressed whether RFRA itself or reenacted legislation with the same standards may validly apply to federal legislation.) The claim must be based on religion in some sense, it must assert a significant interference with religious exercise, and it must be sincere. Even when these conditions are met, a claim fails if application of the law serves a compelling government interest that cannot be satisfied by less restrictive means. What might lawyers learn from experts about religion that could help the resolutions of these kinds of claims?
Law | Religion Law
Judicial Resolution of Issues about Religious Conviction,
Marq. L. Rev.
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