Academic Legal Writing - Eugene Volokh [123]
[¶ 85] Every statute, including an accommodation one, is only one of many laws that a legislature enacts. In a pluralistic society with crosscutting group memberships, the overall distribution of benefits and burdens is likely to be reasonably fair. Otherwise the disadvantaged minority can offer its support to some coalition that is just short of a majority, in exchange for relief from the disproportionate burdens it is bearing.
[¶ 86] The final reason why even minority religions may fare better in the political process than in the courts is simple: they could not do much worse in that process than they already have in the courts. As [one scholar] observed in reviewing the Supreme Court's disposition of free exercise cases: “[P]ut bluntly, the pattern is that sometimes Christians win but non-Christians never do.”270 Although minority religions fared marginally better in the federal courts of appeals,271 the overall pattern was still one of defeat, for minority as well as mainstream religions.
As Part XVII.I.3 (p. 185) argued, the “sometimes Christians win but non-Christians never do” argument is not sound. Moreover, the relative success rates of Christians and non-Christians don't much bear on the subject of the subsection as a whole, and in particular of the first and last sentences of the paragraph—the relative success rates of “minority religions” and “mainstream religions.” As footnote 271 points out, the “minority religions” category includes small Christian denominations such as the Jehovah's Witnesses, as well as individual Christians who aren't affiliated with any denomination. Under that definition, all of the five Supreme Court victories for religious accommodation claims involved “minority religions”: One involved a Jehovah's Witness; two involved Seventh-Day Adventists; one involved the Amish; and one involved a nondenominational Christian.
But again these are modest disagreements on my part with this one part of the article. And even given these disagreements, this section's bottom-line claim is persuasively defended: Minority religions as well as mainstream religions have had little success in court under the rules overturned by Smith, and substantial success in the legislative process.
[¶ 87] Finally, that minority religions may have less to fear from the political process than they do from the courts is well-illustrated by the experience of the Native American Church (NAC). Whereas theirs may be a well-recognized church, those in the NAC would certainly classify as members of a minority religion. One would thus expect them to fare poorly in the political process. Yet prior to the Smith case, twenty-three states and the federal government provided NAC members an exemption from their drug laws for the religious use of peyote. The Supreme Court in Smith, on the other hand, denied such an exemption. That NAC members fared worse in court than they did in the legislative process is not only obvious, it is also typical of the disparate treatment of tribal religions by the courts and legislatures.
4. Building Coalitions
[¶ 88] Whether religious groups, minority or majority, are successful in the political process may ultimately depend on how well they can coalesce. As a coalition, religious groups have the potential to be incredibly powerful politically. Indeed, religious adherents as a single, undifferentiated group probably represent the single largest group-larger than whites, males, females, or those in a particular age group-in the country.275 This fact alone suggests that statutory protections that benefit religion in general should face almost no political opposition.
[¶ 89] The Religious Freedom Restoration Act supports this suggestion. In restoring the compelling interest test, all