Paul rightly asks us to consider more than just formalism. History is important, and I think the concern about freedom of the church goes back at least to Pope Gregory (?) in the 11th (?) Century. Cf. Antigone.
I've suggested elsewhere that a historical approach to what constitutes free exercise might help us understand it. But here is some more somewhat formalistic analysis: I have always understood the general applicability test to involve a kind of most favored nations concern. Are other exceptions allowed to undercut the basis purpose of a law to roughly the same degree that a religious exception would undercut it? If so, the law is not of general applicability. For example, if a prohibition law permitted sale and consumption of beer it would need to permit sale and consumption of wine for communion or for Shabbat or Passover dinners. If there is a copyright law exception for fair use of music in schools, then an exception must be made for church services. Justice (then Judge) Alito made this point in Fraternal Order of Police v. City of Newark (3d Cir. 1989): "Because the Department makes exemptions from its policy for secular reasons and has not offered any substantial justification for refusing to provide similar treatment for officers who are required to wear beards for religious reasons, we conclude that the Department's policy violates the First Amendment." I think that this is a kind of mid-level under-inclusiveness requirement, but one that is used not in applying a level of scrutiny but in deciding what level of scrutiny to apply. From Lukumi Babalu Aye v. City of Hialeah: "The ordinances are underinclusive for those ends. They fail to prohibit nonreligious conduct that endangers these interests in a similar or greater degree than Santeria sacrifice does. The underinclusion is substantial, not inconsequential." Thus the prohibition on animal sacrifice was not generally applicable. I realize that there is other language in the case that focuses on the targeting of religious conduct, on the point that practically the only conduct prohibited was religious. Yet I think the quoted principle captures the basic meaning of "generally applicable." Of course all of these concepts are somewhat manipulable. What is the purpose of laws against murder? To prevent killing? To prevent unjustified killing? To protect the innocent? Under some of these formulations a defense of self-defense could make a murder law not generally applicable in a formalistic sense. But of course our history will prevent murder laws from being invalidated with respect to human sacrifice, even of a volunteer. You might say that background legal principles frame the analysis. We value innocent life. Thus historically we have permitted private self-defense against attackers, but we do not otherwise allow the private intentional killing of a human being except where there is not enough time to get the govt involved. If unenumerated but firmly historically rooted rights (e.g, some parental rights) are constitutionally protected under Due Process, as I think even Justice Scalia accepts, then it makes some sense to consult history as we try to understand a right specifically enumerated in the First Amendment. Almost all legal concepts are manipulable, but that does not mean they are useless. And even laws not of general applicability will be enforceable against religious conduct if the govt interest is strong enough, which gives us an out from a too-formalistic application of the requirement. I suppose a historical approach might have led to a different result in Lukumi. That may cut against it. Animal sacrifice has been seen for quite a long time to be foreign (literally) to the exercise of religion in the US. (A cousin told me of an animal sacrifice done next to her condo building by some middle-eastern immigrants to cleanse the building of the effects of a suicide. The immigrants were neither Jewish nor mainstream Muslim, as I understand it.) Yet we do eat animals in celebrations that have religious or cultural significance (e.g., Thanksgiving turkey). We even grant mercy to such animals at times. Consider presidential pardons of Thanksgiving turkeys. And there is a need to adjust historical analysis to protect religions that are new to our society. Perhaps the general applicability requirement would help us do the needed historical adjustment. Best, Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law
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