Research

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Against the Political Use of Religious Exemptions (Philosophy & Public Affairs)

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Many religious freedom laws provide exemptions to persons who refuse to comply with certain laws on religious grounds. But these exemptions are increasingly used (by claimants and others) to advance political goals. For example, religious freedom lawsuits helped to undermine the Affordable Care Act’s guarantee of coverage for contraceptives. And the recent Masterpiece Cakeshop case was part of a broader effort to protest the right to same-sex marriage. This paper argues that the state should not grant religious exemptions when they are used to advance political goals. A religious exemption creates a legal inequality between citizens that can only be justified if the protection is not used politically. As such, the state should ensure that laws providing religious exemptions are written, interpreted, and enforced so as to prevent their political misuse.

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Compromise and Religious Freedom (Law and Philosophy)

Compromise may seem inconsistent with religious freedom because the religious practices that warrant legal accommodation are too rigid and inflexible to allow for half-measures. But there are numerous examples in which compromise actually works in practice. In Holt v. Hobbs, for example, a Muslim prison inmate proposed a compromise according to which he could grow a half-inch beard rather than a full beard. This paper argues that compromise-based accommodation is consistent with both the nature of religious practices and with the purpose of religious accommodation. Moreover, compromise-based accommodation may help to promote neighborly relationships between citizens. Religious accommodation cannot solve all of our political controversies, but it may help citizens from diverse backgrounds live together. With this more limited goal in mind, compromise can be a legitimate and effective way to structure religious accommodation.

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Religious Arbitration and the Establishment Clause (Ohio State Journal on Dispute Resolution)

Religious arbitration agreements, which compel parties to resolve their legal disputes through religious tribunals, are increasingly common. This Article investigates whether the Establishment Clause provides any reason to be concerned about the increasingly widespread use of religious arbitration agreements. This Article develops an argument, drawing on the Establishment Clause’s nondelegation doctrine, that judicial enforcement of such agreements may be unconstitutional in some cases. In particular, the government should not delegate its authority to enforce the civil law to religious institutions because the government should not act in such a way that a citizen’s ability to access the rights or benefits of citizenship depends on her religious beliefs or affiliation.