Posted by Eugene Volokh:
Religious Exemptions from Generally Applicable Laws:
http://volokh.com/archives/archive_2009_03_15-2009_03_21.shtml#1237498831
A commenter on the [1]hoasca exemption thread writes:
So if my religious precept is that all infidels should be killed or
thrown in jail and all girls should be given clitorectomies the
government should not be compelling me to violate these precepts?
Obviously there are all kinds of limits on the things people can do
in the name of religion. I don't see the logic in excluding drugs
from this if society has determined that drug use is harmful and is
subject to a general prohibition.
Here's the thing: Society, as represented by the aggregate judgment of
Congress, did not determine that drug use is subject to a general
prohibition. Rather, Congress has determined that drug laws --
alongside pretty much all federal laws -- should be subject to
religious exemptions when courts determine that the law (1)
substantially burdens people's religious exercise, and (2) granting
the exemption doesn't sufficiently undermine any compelling government
interest. That's the Religious Freedom Restoration Act, passed by such
a broad bipartisan coalition that the vote was unanimous in the House
and 97-3 in the Senate.
So the "limits on the things people can do in the name of religion"
are (as to federal laws) supposed to be set by courts, at least in the
first instance. Congress could, if it wants to, carve out some
statutory field -- such as drug law -- from the scope of the Religious
Freedom Restoration Act, and keep courts from carving out exemptions.
But it hasn't. (I discuss all this in very great detail in my [2]A
Common-Law Model for Religious Exemptions article, which argues both
that jurisdiction-by-jurisdiction RFRAs are generally a good statutory
rule, and that Employment Division v. Smith was right in generally
rejecting religious exemptions as a constitutional rule.)
Now some might well think that RFRA shouldn't have been enacted. But
now that it has been, they can't appeal to "societ[al]
determin[ation]" that federal laws should be uniformly enforced,
including against religious objectors -- no such determination has
been made.
References
1. http://volokh.com/posts/1237468902.shtml
2. http://www.law.ucla.edu/volokh/relfree.htm
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