Academic Legal Writing - Eugene Volokh [122]
The data here is less complete: The article doesn't purport to catalog all the statutory exemptions, even in the five jurisdictions that it covers—federal law and the law of Alabama, Minnesota, California, and Connecticut—the way that it catalogued all the federal appellate Free Exercise Clause cases from 1980 to 1990. Still, the article gives a lot of specific examples that help show that religious groups do often get specific statutory exemptions.
And the data is persuasive in part because it shows these effects to be broad, rather than just limited to a few narrow areas. As footnote 216 points out, the states were chosen to cover different parts of the country; the article's evidence can't be dismissed as just the practice of the especially religious and Protestant Southern states, or of the especially religiously mixed states such as California. The laws cover many different legal rules and religious practices. And, as we'll see below, the laws benefit minority religions and not just the most common denominations.
3. Minority Religions
[¶ 80] Many argue, however, that religious minorities would suffer if left to rely solely on the political process. As Professor McConnell asserts:
[¶ 81] In a world in which some beliefs are more prominent than others, the political branches will inevitably be selectively sensitive toward religious injuries. Laws that impinge upon the religious practices of larger or more prominent faiths will be noticed and remedied. When the laws impinge upon the practice of smaller groups, legislators will not even notice, and may not care even if they do notice.
[¶ 82] That minorities of any kind fare worse in the political arena than majorities almost goes without saying. Even Justice Scalia, writing for the Smith majority, recognized “that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in ....” Thus, religious minorities have the most to lose by the decision in Smith, the argument continues, for they apparently lost in that case the protection of the one institution—the courts—upon which they could rely.
[¶ 83] Despite the logical force of this argument, however, there are reasons to question whether religious minorities are better off relying on the courts rather than the political process for protection. First, one must consider the number of political concerns that all religions inevitably share, despite their theological differences. In conjunction one should consider the number of protections that legislatures already offer to religious groups that benefit all religions. Indeed, the majority of extant statutory protections and exemptions are available and useful to all religious adherents. Laws that prohibit religious discrimination, for example, prohibit discrimination against minority as well as majority religions. Tax exemptions are available to all religions, both small and large. Laws that allow religious groups to discriminate in employing or housing members of their own faith allow all religious groups to discriminate. Even the statutory exemptions that may not be useful to some faiths—because their religious tenets do not require a particular exemption—such as immunization exemptions or physical examination exemptions, are nonetheless written generally and apply to any and all whose religious beliefs mandate such exemptions. The existing statutory exemptions, in other words, reveal almost no instances where an exemption or a protection is coupled with a particular religion.
[¶ 84] Second, even those exemptions that are not universally useful to all religions do not necessarily favor majority religions, nor do they demonstrate any bias against minority religions. As Professor Mark Tushnet has argued, religious groups tend to form shifting coalitions in the political arena, simply because there is not one monolithic religious majority and different religions will have