Exclusion from the political process is a central question in American law. Thus far, however, it has not been recognized how religious Americans are excluded from the political process and what this means for religious equality.
Put simply, both administrative lawmaking and § 501 (c)(3) of the Internal Revenue Code substantially exclude religious Americans from the political process that produces laws. As a result, apparently equal laws are apt, in reality, to be unequal for religious Americans. Political exclusion threatens religious equality.
The primary practical conclusion concerns administrative law. It will be seen that this sort of "law" is made through a process that systematically excludes religious Americans and their concerns and that it therefore is apt to be religiously unequal. Courts should recognize this inequality and so should take different approaches to administrative and statutory burdens on religion.
Conceptually, the implications are even broader. The free exercise of religion tends to be understood in terms of a binary choice between equality or exemption. The equality, however, is undermined by the exclusion of religious Americans from the political process. The conceptual framework for understanding religious liberty should therefore be expanded to recognize how exclusion tilts the entire game, giving even facially equal laws an underlying slant.
Philip A. Hamburger,
Exclusion and Equality: How Exclusion from the Political Process Renders Religious Liberty Unequal,
Notre Dame L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/654