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By Root 1586 0

“illness for which there is effective treatment and rehabilitation.” Conservative Christians who believe alcohol is a sin rather than a disease, the employees argued that by submitting to drug-testing they would be giving tacit support to an heretical idea, and that they thus must be given an exemption from the program to preserve their right of free exercise. Although they recognized that the government has a compelling interest in ensuring that nuclear power plant workers are not under the influence of drugs, the employees argued that granting an exemption to them only would not present much of a safety risk. They argued that “there are numerous backup systems to prevent a release of radiation, so that it would be exceedingly difficult for a drug-impaired person to cause an accident.”

[¶ 35] Not surprisingly, the Rushton court rejected this “novel” claim, in part because the government's interest was so strong and in part because the burden on the claimant's religion was so slight. Similarly, other courts of appeals have rejected equally spurious claims. Indeed, of the ninety-eight cases examined, at least fifteen were easy losers. Some of those cases, like Rushton, involved government actions or policies that imposed de minimis burdens on the claimant's religious practices. Others involved claims in which the particular activity the claimant wished to engage in could not be said to be motivated—or even encouraged—by the claimant's religious beliefs. Still others, finally, involved attempts by religious leaders to rely on the Free Exercise Clause as a shield against government investigations into their allegedly fraudulent activities. These religious leaders typically argued either that the investigation itself infringed on their religious rights, or that the dictates of their religion rendered their personal use of church finances legitimate. Both arguments failed.

[¶ 36] Although it is not particularly insightful to observe that some cases lost because they deserved to, it is an observation that is difficult to make in this context without appearing hostile to either the religious beliefs involved in the cases or to religion in general. This may explain why so little attention is focused on these cases, but it does not justify that inattention. These cases deserve to be discussed because they may help explain the general reluctance of courts to carve out exemptions from statutes based on the Free Exercise Clause.

[¶ 37] In this context, the slippery slope, or parade of potential horribles105 argument is not raised out of desperation; it is an apparent and realistic possibility. As Professor Lupu notes: “Behind every free exercise claim is a spectral march; grant this one, a voice whispers to each judge, and you will be confronted with an endless chain of exemption demands from religious deviants of every stripe.” Professor Lupu's sarcasm notwithstanding, the “spectral march” to which he refers is conjured up by the cases alluded to above. The mere existence of such cases may make courts hesitant to grant seemingly justified exemptions, for fear that they will be unable to limit those exemptions to sincere religious adherents or confine them to situations in which one's beliefs or religious exercise is seriously burdened.107

[¶ 38] In addition, these cases highlight a difficulty that seems to inhere in the Free Exercise Clause itself: it admits of no principled way to distinguish the meritorious claims from the fraudulent claims without questioning not only the sincerity but the validity of a claimant's religious beliefs.108 If an exemption is granted to one religious group, for example, it would be difficult to deny it to others who profess similar religious beliefs, without calling those beliefs directly into question. Courts are understandably reluctant to do this.109 Granting very few exemptions, or none, can thus be seen as one easy way for courts to avoid even the possibility of having to undertake such a task.

[¶ 39] Finally, these cases support the assertion made below that many significant battles over the