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I don’t understand the distinction between across the board and ad hoc exemptions, particularly as applied to something like National Prohibition and the exemption for the religious use of wine.
How are you going to know whether a practice of a religion about which you know, hypothetically speaking, little or nothing, was significant enough to warrant an exemption?
I don’t understand how the indeterminacy of text renders any reliance on it unprincipled. If that were true then none of the Religion Clause cases (or Equal Protection or Due Process cases) could be said to have been principled. Is that your position?
I might agree with you that the ”founders” would have thought that at least *some* religious exemptions were not guaranteed. But of course the question that matters is which ones were and which ones were not, and whether or not the topography of the domain of freedom from and freedom of religion might have changed over time.
-----Original Message-----
In response to Prof. Newsome's questions below, I would, first, simply repeat that my original question was whether an across-the-board exemption from valid, secular laws given, by either a legislature or the Supreme Court, to religious persons/groups, and them alone, can be justified on the basis of some theory or principle (other than that the majority has a right to pass whatever laws it wants to pass). Second, as explained in an earlier message, by an across-the-board exemption, I mean an exemption from all laws or a large category of laws that is given unconditionally or given unless the government, on the basis of some test like the strict scrutiny test, can convince a judge that in any given situation an exemption should not be given. Third, I am not opposed in principle to legislatures' granting ad hoc exemptions, i.e., exemptions from particular laws granted to certain categories of persons/groups, religious or otherwise, who would be significantly harmed by the application of those laws to them. Therefore, and fourth, I would not be opposed in principle to churches' being given an exemption from a prohibition law so that they could use wine in their rituals. Moreover, although I am not familiar with how essential the use of wine is in various churches, if I were a legislator being asked to include such an exemption in a prohibition law, I would certainly be open to being shown that the harm caused the churches by the law was significant enough to warrant their being given an exemption. Finally, I am not sure how to respond to your second question because I do not understand its import. My initial question, stated above, was predicated on the assumption that there was such disagreement about the meaning of the free exercise clause that one could not simply cite the free exercise clause as a principled reason for across-the-board religion-based exemptions. Although I personally believe, having researched and written on this matter for some years now, that the free exercise clause as originally understood does not guarantee a right to religion-based exemptions, if I could be shown otherwise, then, given my own theory of constitutional adjudication, I would not object to the courts' granting religion-based exemptions on the basis of the free exercise clause.
Ellis M. West
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