Part I of this Article begins with a brief overview of Supreme Court case law on free exercise exemptions, which provides a background for modern historical and normative debates. Part II examines the original understanding of the Religion Clauses, which proponents of “substantive neutrality” claim supports their position. This Part rejects that claim, concluding that the limited evidence of the original understanding of the First Amendment and the Fourteenth Amendment (under which current doctrine makes the First Amendment's guarantees applicable to the states) does not provide a firm basis for resolving modern debates over exemptions, but is at least as consistent with an approach rooted in equality of treatment as it is with competing approaches. The debate among these approaches can only be resolved by addressing the fundamental normative questions. Part III explores those questions, examining the reasons for rejecting a regime of special dispensations from the rule of law for religious individuals and institutions, and instead embracing equal treatment under the Constitution; it discusses the roles of courts and legislatures in accomplishing this constitutional goal. Part IV discusses the implementation of an equal treatment norm in the context of some especially salient current controversies, including organizational autonomy of religious institutions, claims of exemption for the sacramental use of drugs, and exemptions in the prison context.
Equality and the Free Exercise of Religion ,
57 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol57/iss3/5