Cox Comment

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• Publié par: Mocel
• Nombre de lectures: 33
• Langue: English

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FREEING EXERCISE AT EXPRESSION’S EXPENSE: WHEN RFRA
PRIVILEGES THE RELIGIOUSLY MOTIVATED SPEAKER

*
Erin J. Cox
Congress and more than a dozen states have statutorily expanded the scope of
religious liberty beyond that provided for in the U.S. Constitution. These
Religious Freedom Restoration Acts (RFRAs), modeled closely after the federal
progenitor, afford heightened protection to religious objectors by mandating that
laws substantially burdening religious exercise pass strict scrutiny. In this
Comment, I analyze how courts should address claims for exemption under
religious freedom statutes when the religious exercise to be accommodated is speech.
When applied to laws that are otherwise valid under a less rigorous standard,
RFRAs discriminate in favor of religiously motivated speech. The literature has
largely focused on whether this privilege afforded to religious viewpoints violates
establishment and free speech principles.
I aim to show that although RFRAs’ speaker-based privilege is constitutionally
defensible, the government nonetheless has a compelling interest in promoting
equality in speech opportunities among speakers. In considering requests for
accommodation of religiously motivated speech, the government should assert its
countervailing interest in enforcing the law. However, not all religious exercise
that can be conceptualized as speech would yield harms of speaker inequality and
marketplace distortion if accommodated. I develop a heuristic to guide courts in
applying the government’s compelling interest in expressive equality by identifying
situations in which accommodation would either advantage religious viewpoints in
public debate or foster religious communities. The following discussion of these
issues adds a new perspective to the debate concerning RFRAs’ application to
speech, and strikes a balance between religious liberty and expressive equality.
INTRODUCTION....................................................................................................................170
I. THE ROAD TO RFRA...................................................................................................177
A. The Problem: Employment Division v. Smith .......................................................177
B. The Solution: RFRA ...........................................................................................178
1. Congress’s Response to Smith ......................................................................178

* Senior Editor, UCLA Law Review, Volume 56. J.D. Candidate, UCLA School of Law,
2009; B.A., University of California at Berkeley, 2005. I am grateful to Professor Eugene Volokh for
his advice, critique, and encouragement throughout the drafting process; to the students in my
writing circle for their thoughtful suggestions and edits; to my peers at UCLA School of Law whom I
both admire and rely upon for daily inspiration and hilarity; and to Mom and Dad, whose
unconditional love and unwavering affirmation have fueled my overdeveloped sense of confidence.
169

170 56 UCLA LAW REVIEW 169 (2008)
2. Assessing Individual Burden and Government Interest.............................179
II. EXEMPTING THE RELIGIOUS.........................................................................................181
A. Applying RFRAs to Religiously Motivated Speech...........................................182
B. Exemptions: Neither Constitutionally Mandated nor Prohibited.....................185
C. The Religious: Not Constitutionally Privileged.................................................187
III. EXEMPTING SPEAKERS GENERALLY .............................................................................188
A. Legislative Ability to Distinguish Among Speakers188
B. Why RFRAs Provide Speaker-Based Exemptions..............................................193
1. RFRAs Are Content-Neutral......................................................................193
2. RFRAs Protect Religious Liberty, Not Religious Ideology.........................194
3. RFRAs Are an Unlikely Device for Deliberate Market Distortion ...........195
IV. PRIVILEGING RELIGIOUS OBJECTORS IS PROPER—SOMETIMES..................................198
A. The Burden of Being Law-Abiding.....................................................................198
B. Religious Motivation versus Personal Preference: More Than
a Difference of Degree .........................................................................................199
C. Violating Conscience in the Interest of Others .................................................201
D. Respecting an Act of Faith as an Act of Legislative Grace................................203
V. THE COMPELLING INTEREST IN NOT PRIVILEGING RELIGIOUS SPEAKERS:
LIMITING RFRAS’ SCOPE.............................................................................................204
A. Preserving Equality of Status Among Ideas ........................................................205
B. Preserving Equality of Status Among Citizens ...................................................208
C. Avoiding the Perceived Endorsement of Ideas210
D. Avoiding Incidental Marketplace Distortion.....................................................212
VI. BALANCING RFRAS WITH FREE SPEECH PRINCIPLES IN PRACTICE:
THE CASE OF RELIGIOUS SYMBOLISM .........................................................................216
A. Religiously Motivated Conduct as Symbolic Speech.........................................216
B. Lack of an Expressive Secular Analog ................................................................217
C. Applying the Government’s Compelling Interest..............................................220
D. Crafting Specific Exemptions for Burdens on Conscience ................................222
CONCLUSION .......................................................................................................................226

INTRODUCTION
Exemptions for religiously motivated speakers facilitate the free exercise
of religion, but not without a price. To what extent should these exemp-
tions be tolerated when they sacrifice expressive equality in the interest
of religious liberty?
Consider two brothers, Caleb and Adam. Caleb is a devout Christian
and Adam is an agnostic, but the brothers share many viewpoints. The
brothers assemble outside an abortion provider’s home, carrying identical
placards reading “Abortion is Murder!” Caleb, motivated by his religious
convictions, is permitted to stay and demonstrate despite a ban on targeted
residential picketing. On account of a statutory exemption for religiously

Expression’s Expense 171
motivated speakers, the city yields its interest in preserving residential privacy
to preserve Caleb’s religious expression. Adam, on the other hand, is silenced
1and driven away by the sheriff. Adam’s speech is again frustrated when the
sheriff disperses a weekly meeting Adam hosts to discuss the current presiden-
tial nominees. The assembly violates a city ordinance prohibiting regular
residential gatherings of more than 25 people. The sheriff makes no mention
of the ordinance to Caleb, who holds a weekly prayer gathering to pray for
2the return of Christian values to the White House.
Are Adam’s words any less valuable because they are not compelled by a
commitment to God? His brother has been exempted from laws that burden
his religious exercise, but the laws pose just as significant a burden on Adam’s
3exercise of free speech. Though in Employment Division v. Smith the Supreme
Court made clear that religious exemptions from generally applicable laws are
not constitutionally mandated, the government is nonetheless permitted
4some latitude in according heightened protection for religious exercise. In
this instance, the government’s solicitude for religious liberty grants Caleb
opportunities for self-expression denied to his secularly motivated brother.
The legislative response to Smith has created a potential for this disparate
treatment of speakers, as discussed in Part I of this Comment. In response to
what was seen as an abandonment of constitutional concern for the free
exercise of religion, Congress passed the Religious Freedom Restoration Act
5of 1993 (RFRA). Legislatures in Arizona, Connecticut, Florida, Idaho,
Illinois, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island,
South Carolina, and Texas have followed suit, enacting state-level religious

1. See Frisby v. Schultz, 487 U.S. 474 (1988) (upholding under intermediate scrutiny a city
ordinance banning all targeted residential picketing). Due to religious freedom legislation in many
states, if a city wished to enforce this law against Caleb, notwithstanding the burden to his religious
exercise, this same law would have to pass strict scrutiny. Unless the interest in residential privacy
were compelling, the picketing ban would not survive this more rigorous standard of review.
2. See Murphy v. New Milford Zoning Comm’n, 402 F.3d 342 (2d Cir. 2005)