Rationalizing religious exemptions: a legislative process theory of statutory exemptions for religion

Robinson, Zoe 2011, Rationalizing religious exemptions: a legislative process theory of statutory exemptions for religion, William and Mary Bill of Rights Journal, vol. 20, pp. 133-177.

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Title Rationalizing religious exemptions: a legislative process theory of statutory exemptions for religion
Author(s) Robinson, Zoe
Journal name William and Mary Bill of Rights Journal
Volume number 20
Article ID 5
Start page 133
End page 177
Total pages 46
Publisher College of William and Mary
Place of publication United States
Publication date 2011
ISSN 1065-8254
Keyword(s) law
law and religion
public choice
rational choice
legislative behavior
first amendment
religious liberty
religious accommodation
Summary This Article proposes a new theory of religious liberty in the United States: it hypothesizes that a person's religious freedom is dependent on their political power. Following the Supreme Court's 1990 decision of Employment Division v. Smith, the legislattire has sole control over the enactment of accommodations and exemptions from laws of general application for religious adherents. This Article argues that post-Smith accounts of religious liberty and pluralism fail to systematically analyze the relationship between religious liberty and legislative exemptions. To this end, the Article proposes a unique public choice model that hypothesizes that legislative accommodations and exemptions may result from a complex process in which legislators weigh the gains derived from the prospective exemption or accommodation—in terms ofconstittaent voting support—against the costs bome. By modeling legislative accommodations as the result of benefit-maximizing behavior, this Article proposes a significant paradigm shift that posttilates a new, and unasked, question: whether the legislature is overly responsive to majoritarian interests at the expense of minority religious liberty.
Language eng
Field of Research 1801 Law
HERDC Research category C1.1 Refereed article in a scholarly journal
ERA Research output type C Journal article
Copyright notice ©2011, College of William and Mary
Persistent URL http://hdl.handle.net/10536/DRO/DU:30093998

Document type: Journal Article
Collections: Law
2018 ERA Submission
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