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

journal contribution
posted on 2011-01-01, 00:00 authored by Zoe Robinson
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 of
constittaent 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.

History

Journal

William and Mary Bill of Rights Journal

Volume

20

Article number

5

Pagination

133 - 177

Publisher

College of William and Mary

Location

United States

ISSN

1065-8254

Language

eng

Publication classification

C1.1 Refereed article in a scholarly journal; C Journal article

Copyright notice

2011, College of William and Mary