Document Type
Article
Publication Date
2009
Abstract
Do exemptions from ordinary legal requirements for religious individuals and groups contravene the rule of law? If they do only sometimes, rather than always or never, under what circumstances do they do so? This Article explores these intriguing questions, raised powerfully by Marci Hamilton's important and challenging book God vs. the Gavel.
I offer some general observations about the concept of the rule of law, sketch problems posed by religious exemptions, survey various accepted features of our legal order that may seem similarly in tension with the rule of law, and consider in detail the significance of certain kinds of religious exemptions and whether it matters if they are created by legislators or judges.
These inquiries lead me to less stark conclusions than Professor Hamilton suggests and indeed to urge a reformulation of the basic question. That is better understood as: To what degree do various kinds of religious exemptions sacrifice particular standards and values that the complex idea of the rule of law embraces? Although I draw from Professor Hamilton, my aim is not to determine exactly what she thinks, but to use her ideas as a starting point for an independent account.
Disciplines
Law | Religion Law | Rule of Law
Recommended Citation
Kent Greenawalt,
The Rule of Law and the Exemption Strategy,
30
Cardozo L. Rev.
1513
(2009).
Available at:
https://scholarship.law.columbia.edu/faculty_scholarship/3663