Modern American society is pervasively regulated. It is also religiously diverse to a degree that is probably unprecedented in the history of the world. It is inevitable that some of these diverse religious practices will violate some of these pervasive regulations, and equally inevitable that if we ask whether all these regulations are really necessary, sometimes the answer will be no. If we take free exercise of religion seriously, sometimes it will make sense to exempt sincere religious practices from generally applicable laws - but only some laws, and only some applications. Hardly anyone thinks that human sacrifice should be exempted from the murder laws. And hardly anyone thinks that the government should compel Catholics to ordain female priests, or forbid children to take a sip of communion wine. Other cases provoke more disagreement. Who should decide, and on what criteria? The legal claim in God vs. the Gavel is that only legislatures may decide, and that judges may not. The legislature must enact specific rules for religious exemptions; it may not enact religious exemptions under a generally applicable standard to be interpreted by judges. Professor Marci Hamilton briefly argues for this claim in Chapter Ten.
A Syllabus of Errors,
Mich. L. Rev.
Available at: http://repository.law.umich.edu/mlr/vol105/iss6/9