Should the law sometimes exempt religious objectors from generally applicable laws? And, if so, should it be done (1) only on a statute-by-statute basis — where the legislature decides, when it passes or revises a statute, whether there ought to be an exemption from that statute — (2) through a broad exemption law, which calls on courts to decide when to carve out religious exemptions from a statute and when not to, or (3) as a matter of constitutional command, interpreting the Free Exercise Clause as presumptively (but not categorically) mandating religious exemptions?
I’m inclined to conclude that the best solution is a mix of (1) and (2) — legislatures create exemptions when they think of them, but also authorize courts to do the same — but generally without the constitutional model (3). I discuss this in much more detail in my “A Common Law Model for Religious Exemptions” article, but here I just want to focus on part of that: why I think religious exemptions are often a good idea, even though I myself am not religious. . . .[Full text]