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By Root 1641 0

accommodation of religious beliefs have already been won, and won in the legislatures rather than the courts. The issues presented in these fifteen cases, as well as those presented in a substantial number of others, did not generally represent questions of fundamental importance either to the religion involved or to society in general. The claims were often tangentially related to the doctrines of the religion involved. Consider the religious interests represented in these cases: the claim of a Jewish policeman to arrest those who denigrate his religion; the right of a minister to be free from investigation into his alleged fraudulent television and radio fund drives; the right of draft-exempt theological students not to indicate that they are in fact exempt on financial aid forms; and the right of Conservative Christians not to submit to drug-testing for fear that their participation will offer tacit support to the idea that alcoholism is a disease rather than a sin. It would be difficult to characterize any of these as important or far-reaching issues of religious liberty.

[¶ 40] This is not to say that the issues presented by these cases were not significant to those involved. But the fact that these were the issues being litigated—and not ones of more obvious and central importance to religious adherents—provides some insight into the adequacy of already existing protections afforded to religious belief and practice. Courts may have been presented with weak claims simply because the more important protections for religious adherents had already been secured elsewhere, namely in the legislature. Courts in turn may have rejected a significant number of free exercise cases not out of hostility toward particular religions or religion in general, but rather because a large number of these cases were of little merit and deserved to be rejected.112

Observe the tone of this passage (and of the article as a whole), and the messages it sends about the author and the author's credibility.

First, the article is willing to criticize influential people—judges, commentators, and legislators—without getting insulting or one-sided. The article is not friendly to the logic of Smith, for instance (see the Introduction), and in footnote 108 it notes that Justice Scalia's argument “exaggerates.” But the article also points out the merits of Justice Scalia's argument as well as the weaknesses.

Second, the article makes clear that the author doubts the value of a broad reading of the Free Exercise Clause, but also that the author is not hostile to religion or to the claims of religious adherents: The article makes clear that there are serious arguments for religious exemptions, as well as serious arguments against having courts decide which exemptions should be mandated under the Free Exercise Clause. This makes it possible even for people who passionately support religious accommodations to be persuaded by the article's criticisms, and by the article's view that religious accommodations are best created through legislative decisionmaking about each proposed accommodation.

If an author thinks that religious accommodations are always unconstitutional or unwise, or that religious belief is harmful and should be accommodated as little as possible, the author should say so. Those are perfectly legitimate positions to take.

But that's not what this author thinks, so it's important that readers (including readers who feel so strongly about such matters that they naturally fall into an us-vs.-them religious-rights-vs.-secularism mode) don't mistake the author's intentions. By having a measured tone, and by substantively acknowledging the value of religious exemptions while expressing skepticism of the value of broad Free Exercise Clause rights, the author maximizes the effectiveness of his argument.

B. The Winning Cases

[¶ 41] The losing claims just discussed demonstrate, implicitly, that the bulk of free exercise cases would come out no differently after Smith. They illustrate the courts' ability to manipulate the factors of the compelling