,,,Progressive Religion and Free Exercise Exemptions

Abstract

Most current-day free exercise claims involve conservative causes, like the baker who refuses to make a wedding cake for a same-sex couple or an employer who refuses to provide employees with insurance coverage that includes contraceptives. These types of “refusal claims” have dominated the free exercise exemption space for many years; the Trump administration has vigorously reinforced this narrative of religious freedom. In response, liberals have sought to restrict exemptions, some even to the point of questioning the value of religious freedom. This article highlights the fact that there is an increasing visibility of progressive religious causes. On political issues with profound moral dimensions, such as immigration and refugees, poverty and homelessness, and care for the environment, many religious liberals have long been, and continue to be, involved in grass roots organizing, education, service, and — with greater frequency — litigation to seek religious exemptions. The visible participation of religious progressives challenges the dueling and entrenched narratives of conservatives and liberals and will likely contribute to an ever-evolving political and juridical compromise among multiple religious freedom narratives. The article categorizes claims into predominantly conservative refusal claims and predominantly liberal “affirmative” claims. Affirmative claimants seek to exercise religion without legal restraint. Affirmative acts are broader and more indeterminate than the acts involved in refusal claims, since refusal claims are generated by what the law requires while affirmative claims are guided by what a religion teaches. Cognizant of these differences, the article uncovers possible doctrinal obstacles and inequities in the way courts might address affirmative claims, particularly in connection with meeting the “substantial burden” requirement under statutes like the federal Religious Freedom Restoration Act and similar laws.