The prospect of religious exemptions in the marketplace

05/22/09 hunter of justice / 05/22/09 PrawfsBlawg

Bill Araiza is a law professor at Brooklyn Law School. He describes a personal example of what would happen if religious-conscience exemptions extended to individuals engaged in any kind of commerce, not just the wedding trade. He considers not just varieties of proposed exemptions in same-sex marriage laws for individual religious objectors, but exemptions that represent "a matter of constitutional right under the Free Exercise Clause." Where can a line be drawn to limit exemption for religious-conscience in commerce?

Georgetown University Law Professor Nan Hunter expresses concern that the line could be drawn too broadly "if the law established a religious exemption for ordinary businesses [and their employees]." In fact, such a broad expansion would require repeal of state laws that bar discrimination based on sexual orientation - an unlikely prospect. Law professor Douglas Laycock recently responded to the opposite concern, which Araiza might be understood as sharing. This is the concern that unless religious-conscience exemptions are codified, "courts might create exemptions that are too broad." Here is where he thinks courts tend to draw the line in the absence of statutory exemptions:

"[The far greater likelihood is that courts guided only by state constitutions and state Religious Freedom Restoration Acts will create exemptions that are far too narrow. We know from experience that gay rights organizations will fiercely resist all claims to exemption, and that many judges are uncomfortable with religious exemption cases. When guided only by the general language of constitutions and RFRAs, judges are too slow to find burdens on the exercise of religion and too quick to find compelling government interests."