To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Professor Marci A. Hamilton’s The Case for Evidence-Based Free Exercise Accommodation: Why the Religious Freedom Restoration Act Is Bad Public Policy. Professor Hamilton, who holds the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, writes:
In this article, I will first describe the Supreme Court’s Constitution-based religious accommodation jurisprudence before the first RFRA statute was enacted. Second, I will describe RFRA’s features and enactment, which violate widely-accepted principles of transparency. Third, I will describe the negative unintended (and intended) consequences of RFRA. Finally, I will propose an evidence-based approach to religious accommodation, which is a superior process for achieving sound public policy and the common good. In a nutshell, my proposal requires two initial steps: (1) repeal RFRA and, therefore, (2) return free exercise cases to the Court’s longstanding First Amendment jurisprudence, which provided ample room for legislative and executive accommodation involving a specific practice and a specific law. Once these legal repairs have been accomplished, the accommodation process should strive for greater accountability and transparency, meaning that legislators would take a more responsible position on the potential impact of the proposed accommodation by ascertaining: (1) the laws to be affected; (2) who is seeking to avoid their obligations under the law and for what practice; (3) who would be harmed by the proposed accommodation; and (4) the views of experts in the field and the public. The bottom line is that the federal and state RFRAs have been passed through ignorance, with only religious organizations knowing what laws they intend to break with a RFRA. Legislators have an obligation to all of their constituents, religious or not, and particularly to those they might be harming unknowingly. The proposal in this article is intended to create a more just process and one that shields victims of religious conduct, of which there are many.
Like several other articles previously featured on Notice & Comment, Professor Hamilton’s article is particularly relevant in light of the recent controversy in Indiana. Give it a read today!