The Case Against the Constitutionally Compelled Free Exercise Exe
➤ Gửi thông báo lỗi ⚠️ Báo cáo tài liệu vi phạmNội dung chi tiết: The Case Against the Constitutionally Compelled Free Exercise Exe
The Case Against the Constitutionally Compelled Free Exercise Exe
UNCSCHOOL OF LAWUniversity of North Carolina School of LawCarolina Law Scholarship RepositoryFaculty PublicationsFaculty Scholarship1989The Case Again The Case Against the Constitutionally Compelled Free Exercise Exenst the Constitutionally Compelled Free Exercise ExemptionWilliam p MarshallUniveriity of North Carolina School oj Law, wpm^ỉfonuil.unaeduFollow this and additional works at: http://scholarship.law.unc.edu/facuky_publicationsPart of the Law CommonsPublication: Vic Journal of Law and Religionthis Art The Case Against the Constitutionally Compelled Free Exercise Exeicle is brought to you for free and open access by the Faculty Scholarship It Carolina law Scholarship Repository. It has been accepted for inclusionThe Case Against the Constitutionally Compelled Free Exercise Exe
in Faculty Publications by an authorized administrator of Carolina Law Schohnlnp Repostoey. For more information, please contact lúw _rcpositix'))if'uUNCSCHOOL OF LAWUniversity of North Carolina School of LawCarolina Law Scholarship RepositoryFaculty PublicationsFaculty Scholarship1989The Case Again The Case Against the Constitutionally Compelled Free Exercise Exeall*Should religious claimants receive an exemption from neutral laws under the free exercise clause of the first amendment? The Author argues that granting a free exercise exemption from neutral laws creates a number of serious problems, including constitutional and definitional ones. He focuses on The Case Against the Constitutionally Compelled Free Exercise Exe the arguments that have been advanced in support of the free exercise analysis and the weakness of those arguments. Employment Division, Department oThe Case Against the Constitutionally Compelled Free Exercise Exe
f Human Resources V. Smith, which was decided as this Article was going to press, supports many of the contentions made in this Article and is brieflyUNCSCHOOL OF LAWUniversity of North Carolina School of LawCarolina Law Scholarship RepositoryFaculty PublicationsFaculty Scholarship1989The Case Again The Case Against the Constitutionally Compelled Free Exercise Exen surrounding free exercise addresses only incidental and inadvertent regulation of religious conduct. For this reason, the issue in a free exercise challenge typically is• Professor, Case Western Reserve University School of Law; B.A., University of Pennsylvania (1972); J.D., University of Chicago The Case Against the Constitutionally Compelled Free Exercise Exe(1975). I wish to express appreciation to Erwin Chemerinsky, Mark Tushnet, Michael McConnell, Richard Myers, Melvyn Durch-slag, Jonathan Entin, KevinThe Case Against the Constitutionally Compelled Free Exercise Exe
McMunigal, and Robert Strassfeld for their comments on an earlier draft of this Article. Research assistance was provided by Tracey Burton.These remarUNCSCHOOL OF LAWUniversity of North Carolina School of LawCarolina Law Scholarship RepositoryFaculty PublicationsFaculty Scholarship1989The Case Again The Case Against the Constitutionally Compelled Free Exercise Exel on April 13, 1989. I am deeply indebted to Georgetown for making this Article possible.357358CASE WESTERN RESERVE LAW REVIEW[VOLnot whether a law is constitutional; the law under attack is usually constitutionally unassailable outside of its incidental effect on religious practice. Rather, the iss The Case Against the Constitutionally Compelled Free Exercise Exeue is whether certain individuals should be exempted from otherwise valid, neutral laws of general applicability solely because of their religious conThe Case Against the Constitutionally Compelled Free Exercise Exe
viction. The jurisprudence of free exercise, in short, is the jurisprudence of the constitutionally compelled exemption.1There are a number of tensionUNCSCHOOL OF LAWUniversity of North Carolina School of LawCarolina Law Scholarship RepositoryFaculty PublicationsFaculty Scholarship1989The Case Again The Case Against the Constitutionally Compelled Free Exercise Exet make free exercise jurisprudence a particularly difficult subject for coherent analysis. First, because special exemptions of any kind raise concerns of undue favoritism, they are normally suspect as violating fundamental constitutional principles of equal treatment.2 Thus, as the Court noted just The Case Against the Constitutionally Compelled Free Exercise Exe last week, the conclusion that the Constitution may require the creation of an exemption directly contradicts the constitutional norm.3Second, the diThe Case Against the Constitutionally Compelled Free Exercise Exe
fficulties inherent in exemptions are exacerbated when an exemption favors religion. Beyond general equality notions, the advancement of religion trigUNCSCHOOL OF LAWUniversity of North Carolina School of LawCarolina Law Scholarship RepositoryFaculty PublicationsFaculty Scholarship1989The Case Again The Case Against the Constitutionally Compelled Free Exercise Exeutionally compelled exemptions leads to a first amendment jurisprudence that simultaneously calls for special deference to religion1.Stone, Constitutionally Compelled Exemption and the Free Exercise Clause, 27 Wm. & Mary L. Rev. 985, 985 (1986). As Dean Stone indicates, the constitutionally compelle The Case Against the Constitutionally Compelled Free Exercise Exed exemption is not unique to free exercise. Occasionally, exemptions have been made under the speech and assembly clauses. See Brown V. Socialist WorkThe Case Against the Constitutionally Compelled Free Exercise Exe
ers ‘74 Campaign Comm., 459 U.S. 87, 98 (1982) (the first amendment prohibits a state from compelling disclosure by a minor political party of its camUNCSCHOOL OF LAWUniversity of North Carolina School of LawCarolina Law Scholarship RepositoryFaculty PublicationsFaculty Scholarship1989The Case Again The Case Against the Constitutionally Compelled Free Exercise Exea ex rel. Patterson, 357 U.S. 449, 466 (1958) (compelled disclosure of the NAACP’s membership lists will probably constitute a restraint on its members’ freedom of association).2.See, e.g., Note, Religious Exemptions Under the Free Exercise Clause: A Model of Competing Authorities, 90 Yale L.J. 350, The Case Against the Constitutionally Compelled Free Exercise Exe 356 (1980) (“Exemption doctrine has . . . been unable to provide a principled answer to objections that religion-based exemptions contradict the ruleThe Case Against the Constitutionally Compelled Free Exercise Exe
of law, violate general notions of equal treatment, and violate the establishment clause.” (citations omitted)).3.Employment Div., Dep’t of Human ResUNCSCHOOL OF LAWUniversity of North Carolina School of LawCarolina Law Scholarship RepositoryFaculty PublicationsFaculty Scholarship1989The Case Again The Case Against the Constitutionally Compelled Free Exercise Exews ... is a constitutional anomaly”); see also Stone & Marshall, Brown V. Socialist Workers: Inequality as a Command of the First Amendment, 1983 Sup. Ct. Rev. 583, 584 (noting that constitutionally compelled exemptions are exceptional in constitutional law.).1989-90]CASE AGAINST FREE EXERCISE EXEMP The Case Against the Constitutionally Compelled Free Exercise ExeTIONunder the free exercise clause and a prohibition of special deference under the establishment clause.4UNCSCHOOL OF LAWUniversity of North Carolina School of LawCarolina Law Scholarship RepositoryFaculty PublicationsFaculty Scholarship1989The Case AgainUNCSCHOOL OF LAWUniversity of North Carolina School of LawCarolina Law Scholarship RepositoryFaculty PublicationsFaculty Scholarship1989The Case AgainGọi ngay
Chat zalo
Facebook