Academic Legal Writing - Eugene Volokh [110]
3. Possible Explanations
[¶ 31] Although their rejection of particular claims is sometimes difficult to justify, the courts' general reluctance to grant exemptions is somewhat understandable. One difficulty facing courts is that the constitutional balancing in the free exercise area is unlike that undertaken in other contexts. Often the law from which free exercise claimants seek exemption has a legitimate and compelling governmental purpose—unlike laws, for example, that intentionally discriminate against a particular class.
The most effective arguments tend to combine data with a theoretical explanation. The theoretical explanation helps persuade people that the pattern revealed by the data is likely to continue—here, that the pre-Smith results would likely endure even if Smith were reversed. And, rightly or wrongly, some lawyers and legal academics tend to be more impressed by authors who don't just rely on factual observations but also couple them with theoretical observations.
Here, and in the following paragraphs, the article begins to offer the theoretical explanation. The preceding sections weren't pure data; they provided some analysis of why the courts might have reached the results that they did, and such running analysis is helpful. But standing back and providing a broader analysis is helpful, too.
[¶ 32] The specific exemptions sought, moreover, present the court with a difficult dilemma. Although one or two exemptions to a law will rarely threaten the state's ability to achieve the legitimate purpose represented by that law, a large number of exemptions may very well pose such a threat. The state may thus simultaneously not have even a reasonable interest in denying a particular exemption to a certain law or regulation and a compelling interest in denying a large number of exemptions to that same law or regulation. To compensate for this latter possibility, courts seem to eschew the part of the compelling interest test that admonishes them to consider whether the denial of a particular exemption is the least restrictive means by which the state can achieve its interest. Instead they seem to consider the potential harm to the state's interest that would occur if a large number of exemptions to a law or regulation were granted.91 Although it is understandable that courts consider the future ramifications of particular exemptions and particular decisions, in this context such a consideration nonetheless prevents a proper balancing of interests because it is often done sub rosa92 and is based necessarily on conjecture rather than facts.
A quibble: Latin phrases such as “sub rosa” are probably best avoided, unless you're sure that nearly all your readers will understand them. (The article generally doesn't use such phrases; I suspect the phrase was just so familiar to the author that he didn't even realize that some people might not be familiar with it.)
[¶ 33] A second, related difficulty is illustrated by those claims that were of little merit. Of the federal appellate cases surveyed, some were simply obvious losers. Not included in this grouping, it should be noted, are cases involving religious beliefs that were somewhat incredible. This characterization includes only those cases in which, even assuming the claimant's beliefs were both sincere and valid, the claims presented were only remotely and tangentially related to religious beliefs.
[¶ 34] Rushton v. Nebraska Public Power District provides a good illustration of this tangential relationship. In that case, two public employees at a nuclear power plant, who refused to comply with the plant's drug-testing scheme and were therefore fired, brought a free exercise claim challenging their dismissal. The employees did not object to urinalysis per se, but rather to a policy statement concerning the drugtesting that described alcoholism as an