Academic Legal Writing - Eugene Volokh [124]
[¶ 90] The real question, then, is whether religious groups will coalesce when only one or two religions within the coalition stand to lose or benefit. Can or will religions band together to protect just one religion, particularly a minority one? The answer to this question turns on such considerations as how often minority and majority religions will have issues in common, the degree to which religious groups will see in each exemption struggle a common issue of religious liberty in which they feel a vested interest, or the degree to which religious groups will lend support to others out of altruism. Although a full exploration of these considerations is beyond the scope of this Note, there is one piece of evidence that suggests that religious groups will coalesce, and will do so for a variety of reasons.
[¶ 91] That evidence lies in the amicus curiae briefs filed in Supreme Court free exercise cases and in several of the appellate cases. These briefs demonstrate that religious groups of different faiths and different denominations do in fact lend support to each other. Sometimes the reason for the support is obvious, as in Sherbert v. Verner, when the Jewish Committee wrote a brief for the Seventh-Day Adventist claimant, who sought relief when denied unemployment compensation because she would not work on Saturday, the day of her Sabbath. In other cases, however, the only apparent connection between the groups is their general interest in religious liberty.279 Although hardly conclusive, these briefs reveal that religious groups will unite in the courtroom, even when only one religion can gain directly from a favorable judgment.280 If they are willing to coalesce in that context, there appears to be no reason why they would not do so in the political process.
[¶ 92] In addition, religious exemptions do not present a zero-sum scenario, such as affirmative action seems to (in the eyes of some) for blacks and whites. One church's gain, in the form of an exemption, is not another's loss. Thus even if they do not band together, there is little political incentive among churches to oppose exemptions. There also seems to be little religious incentive to oppose exemptions, unless one religion is intent on eviscerating the others. Regardless of differences in theology or belief, therefore, there seem to be more incentives than disincentives for religious groups to form political coalitions for the purpose of securing statutory protection and exemptions.
[¶ 93] That religious groups may be forced or encouraged by Smith to coalesce more than ever may ultimately benefit not only those groups but society as a whole. Rather than sequestering themselves in their own private court rooms, perhaps religious groups will come together to wage political battles in the halls of Congress, in state legislatures and in town halls, and in so doing lower the walls of prejudice and ignorance that often separate adherents of different religions. To the degree that this increased contact will increase understanding and toleration, members of differing faiths can only gain. Their gain, in turn, can translate into a society more tolerant and accepting of diverse religious faiths.
This section, like the section on RFRA (Part III.A), offers a good example of persuasive speculation. The article can't prove that religious groups, including minority religions, will often be able to prevail in the legislative process by building coalitions. But it offers concrete evidence that such coalitions have been common, and that we should therefore expect them to remain common. That's probably the best that can be done here, and the article does it effectively.
IV. Conclusion