FRAGILITY, NOT SUPERIORITY? ASSESSING THE FAIRNESS OF SPECIAL RELIGIOUS PROTECTIONS.

INTRODUCTION 149 I. THE FAIRNESS DEBATE 156 A. The Question 156 B. Existing Answers 159 C. Limitations 162 II. STEPPING BACK: THE WHAT AND WHY OF OUR CIVIL LIBERTIES 164 [...]
Is it fair to grant exemptions from neutral laws to protect religion but not other deep commitments and pursuits, like secular conscience or care-giving bonds? The thirty-year scholarly debate on this question now has legal import, as the Supreme Court stands poised to reverse precedent and restore free exercise exemptions from neutral laws. Whether it should, under stare decisis, turns partly on moral considerations like the fairness issue. And the fairness debate is worth revisiting. Almost everyone has assumed that special religious protections are fair only if religion matters more than other interests. Yet protections for religion might be warranted not because religion is more important, but because it is more needful of protection. To see if these special protections are indeed fair and necessary, this Article develops a measure of need, based on how all civil liberties work in our system. Our doctrines on speech, abortion (for decades), gun rights, and travel have imposed heightened scrutiny on laws that deny us one means of exercising a liberty without leaving adequate alternatives--i.e., other ways to realize the interests served by that liberty to the same degree and at no greater cost. Thus, an interest will have greater need for this protection, the more that laws burdening some means to it will leave no adequate alternative means--or the more "fragile" the interest is. And even if an interest is fragile (because burdens on it are often too heavy), it will not need protection if it rarely faces burdens, heavy or not--if it is not "exposed." These two concepts create a framework for assessing all our liberties and limiting their scope. So far, the fairness debate has produced almost no evidence that key secular interests need adequate-alternatives protection--that they're fragile or exposed. By contrast, the interests served by religion are quite often fragile. Their pursuit must be funneled into the narrow range of behaviors dictated by a believer's particular creed. And her creed is what it is. She cannot change it just to get around the law. If a law makes it hard for her to live as a Muslim, she cannot make up for that by living as a Mennonite. Religious demands can also be more particular or picky than other life-shaping commitments. Thus religion's fragility: removing options often leaves no adequate alternatives. This Article sketches several ways, rooted in different disciplines, to see if the same is true of crucial secular interests--to see if they have as much need for protection, or if religion is more needful and so fair to single out. On this, the Article seeks not to settle the fairness debate but to steer it onto crucial overlooked questions.