Academic Legal Writing - Eugene Volokh [120]
[¶ 71] Courts interested in circumventing the Smith decision, therefore, appear to have ample means to do so. In fact, several courts of appeals have done just that in cases arising after Smith. In Ferguson v. Commissioner, for example, the court did not even cite Smith in upholding a free exercise claim against a requirement that those in a federal tax court swear or affirm before testifying. In another example, Salvation Army v. Department of Community Affairs, the court remanded a free exercise claim specifically to allow the claimants to raise a “hybrid” claim involving freedom of association. Thus, for courts intent on granting a free exercise exemption, Smith may not be as big an obstacle as it appears.
2. Focus on the Legislature
[¶ 72] Because few courts evidence such an intention, however, those interested in protecting their religious liberty should turn their attention to the legislature. There exists much evidence to suggest that legislatures will be receptive to their claims. Indeed, a search through all the existing statutes, both state and federal, reveals that the terms “religion” or “religious” appear over 14,000 times. Religious exemptions, in turn, exist in over 2,000 statutes. Although the probative value of these numbers is obviously limited, a closer look at federal statutes and those of four states216 suggests that the political process has been fairly protective of religious freedom.
[¶ 73] In the United States Code, for example, exemptions exist in food inspection laws for the ritual slaughter of animals, and for the preparation of food in accordance with religious practices. The tax laws contain numerous exemptions for religious groups and allow deductions for contributions to religious organizations. Federal copyright laws contain an exemption for materials that are to be used for religious purposes. Antidiscrimination laws, including Title VII, the Fair Housing Act, and the Aid to the Disabled Act, contain exemptions for religious organizations. Ministers are automatically exempt from compulsory military training and service. Aliens seeking asylum can do so on the grounds that they will suffer religious persecution if returned to their home countries and gambling laws contain an exemption for religious organizations. Those in the military may wear religious apparel while wearing their uniforms, subject to limitations imposed by the Secretary of Defense. And last, but certainly not least for purposes of this Note, federal drug laws contain an exemption for the religious use of peyote by members of the Native American Church.
[¶ 74] At the same time that religious organizations are exempted from several antidiscrimination laws, numerous statutes prohibit other organizations from discriminating on the basis of religion. Although these statutes are based on equal protection grounds, rather than on free exercise grounds, they illustrate the protection granted to religion by legislatures. An example of such statutes is the provision prohibiting the selection of civil service employees on the basis of religion. Further, federally assisted institutions of higher education are forbidden to discriminate on the basis of religion, whereas the same type of institutions run by religious groups are free to discriminate on the basis of sex, if their religion so dictates. Title VII prohibits employers and labor organizations from discriminating on the basis of religion, and requires both groups to reasonably accommodate workers' religious practices. Organizations receiving federal money under the National and Community Services Act are prohibited from engaging in religious discrimination. Finally, Organizations receiving federal assistance under the Public Works Act are forbidden to practice religious discrimination.
[¶ 75] The legislatures of the