James M. Oleske Jr. (Lewis & Clark Law School) has posted Lukumi at Twenty: A Legacy of Uncertainty for Religious Liberty and Animal Welfare Laws. The abstract follows.
Twenty years after the Supreme Court’s decision in Church of the Lukumi Babalu Aye v. City of Hialeah, uncertainty reigns in the lower courts and among commentators over the issue of constitutionally compelled religious exemptions. Despite the Court’s general disavowal of such exemptions in Employment Division v. Smith, Lukumi appeared to breathe life into a potentially significant exception to Smith. That exception – which this Article calls the “selective-exemption rule” – provides that religious exemptions may still be required by the Free Exercise Clause when the government has selectively made available other exemptions to a law.
This Article addresses the key unresolved questions about the scope of the selective-exemption rule and challenges the received reading of the leading circuit court decision interpreting the rule. Relying heavily upon that reading, prominent religious liberty advocates have been pressing for a remarkably broad interpretation of the selective-exemption rule – an interpretation that would go a long way to achieving a de facto reversal of Smith. But while there are credible arguments for reconsidering Smith and its “equal protection” interpretation of the Free Exercise Clause, those arguments should not be advanced through the backdoor of the selective-exemption rule. That rule was adopted as part of the Smith paradigm, and it only makes sense to interpret it within that paradigm.
Accordingly, this Article makes the case for, and explains the doctrinal consequences of, an appropriately tailored reading of the selective-exemption rule – a reading grounded in the rule’s origins as a tool to guard against intentional discrimination. Such a reading could have profound impacts not only on hot-button cases being litigated around the country over contraception mandates affecting pharmacies and employers, but also on countless animal welfare laws whose status has been uncertain in the two decades since the Court decided Lukumi.