I do think it's important to distinguish among four distinct types of underinclusion arguments, though they often overlap both conceptually and in specific cases:
1. Exceptions that undermine the government's argument that the law in question is supported by a compelling interest. As others have pointed out, one needs to be very careful here because those other exceptions might well be supported by sound arguments of their own. 2. Exceptions that suggest a roadmap for a less intrusive means to achieve the government's compelling interest. That's the basic form of the argument in the Hobby Lobby majority opinion. 3. Exceptions (as in O'Centro) that, as Alan points out, would raise a question of inter-religious equality if the claimant doesn't receive a similar exception. 4. Finally, some exceptions raise what might be called a "most favored nation" concern -- the subtle and often implicit principle that religious interests should be treated at least as well as roughly analogous secular interests. The challenge here is figuring out when interests are "roughly analogous," which often requires a more subtle, imaginative, understanding of religious norms as establishing something like "hard facts." The disputes arising out of beard rules, for example, strike me as resting in part on a willingness to conceptualize religious reasons for not cutting a beard as equivalent to health-related reasons. Similarly, as Guido Calabresi has emphasized, the mitigation of damages problem that can come up when tort victims refuse blood transfusions fall into place if we're willing to treat such religious convictions as the equivalent of "thin skulls" and then just apply the general rule that tortfeasors must take their victims as they find them. As I said, though, this principle, though very important to my mind, is also often implicit, partly because it is so necessarily slippery. Also, the bankruptcy law's accommodation of tithing in personal reorganization rests, I think, on a willingness to treat tithing obligations as the religious equivalent of hard financial debts, though secular law would not otherwise treat them that way. Perry ********************************************* Perry Dane Professor of Law Rutgers University School of Law *********************************************
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