The individualistic American law of religious exemptions
By Eugene Volokh
January 19 at 2:16 PM
Say that someone demands a religious accommodation, under one of the state or federal religious exemption regimes (whether under an employment statute such as Title VII, a Religious Freedom Restoration Act, a state constitutional religious freedom provision, or what have you). And say that most of his co-religionists don’t share this belief or that the belief isn’t seen as part of the standard obligations that the religion imposes on its adherents. Would he lose because of that?
Say, for instance, that most Muslims (at least of the claimant’s denomination) generally do view using alcohol as wrong but don’t take this view as to transporting alcohol? (I express no view here on what actually is the dominant Muslim belief; let’s just hypothesize for purposes of this post that most Muslims don’t see transporting alcohol as sinful or otherwise religiously forbidden.) Or say that most people of that denomination view same-sex sexual behavior as wrong but don’t take this view as to simply processing same-sex domestic partnership registrations or renting an apartment to a same-sex couple. Should the claimant lose on those grounds?
The American law of religious exemptions says “no,” because that law is in this respect individualistic. The right to a religious exemption belongs to a particular religious believer because of his religious beliefs, whatever they might be. The right does not belong to a religious group (setting aside certain religious associational rights that are not relevant here), nor does it belong to a person by virtue of his membership in a group.
As a result, small sects, minority groups within sects, and even idiosyncratic religious believers are as protected as large sects. One doesn’t need a note from one’s priest to prevail in a religious exemption case.
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/01/19/the-individualistic-american-law-of-religious-exemptions/
