I was just reading, and being puzzled by, Hadley Arkes' First Things article, "Recasting Religious Freedom," http://gallery.mailchimp.com/87af8f0af298f8ee9016150c3/files/f4e8099e-b859-4316-b018-30b1df49f257.pdf. I hesitate to try to summarize his point, for fear that I didn't fully grasp it; but, as best I can tell, he seems to be saying that (1) religious freedom rights should only apply to belief systems that are sufficiently well-reasoned (p. 47) -- though I'm not sure if the quality of the reasoning is meant to be judged by his standards or by the courts' -- and (2) once an exemption claim is found to belong to such a system, the government must accept it unless it can show that it is "deeply unreasonable" (p. 49). But I wonder whether others on the list have read the article and can offer a different (and perhaps better) reading.
I will say that there is one thing I like about Arkes' analysis - it suggests, on p. 50 (and in other places), that a constitutional religious exemption regime would in many ways be very close to the Lochner-era substantive due process regime, though it would apply the generalized Lochnerian liberty only to those who can claim a religious freedom claim. That is the argument I made in my "Common-Law Model for Religious Exemptions" article, http://www.law.ucla.edu/volokh/relfree.pdf, though I made it against a constitutional exemption claim. But that is a somewhat different matter; at this point, I just want to make sure I understand Arkes' argument. Many thanks, Eugene
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