The Individualistic American Law of Religious Exemptions

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 coreligionists 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.

This means courts need not decide what one’s actual denomination is — whether, for instance, someone should be seen as a Christian (so that one would get an exemption only for beliefs that most Christians share), a Protestant (so that one would get an exemption only for beliefs that most Protestants share), a Baptist, a Seventh-Day Baptist, as a member of some division of Seventh-Day Baptism, and so on. Nor do courts have to resolve which interpretation of Islam is “actual Islam” and what is a heresy. And this is quite consistent with America’s Protestant legacy: The notion that each believer should decide for himself what God commands is quite traditional within Protestantism, as is the multiplication of sects and subsects.

Thus, consider (I copy this from an update to my Muslim truck driver post) the Supreme Court’s opinion in Thomas v. Review Bd., where a Jehovah’s Witness’s exemption claim was based on his objection to working in war production:

The [lower] court also appears to have given significant weight to the fact that another Jehovah’s Witness had no scruples about working on tank turrets; for that other Witness, at least, such work was “scripturally” acceptable. Intrafaith differences of that kind are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve such differences ….. [Protection] is not limited to beliefs which are shared by all of the members of a religious sect…. [I]t is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation.

Or, from Frazee v. Illinois Emp. Sec. Dep’t, another case involving a Christian claimant: “[W]e reject the notion that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization.”

Likewise, a claimant may prevail even if his belief seems unreasonable, logically inconsistent, or contradicted by his own religion’s scriptures: This too the Supreme Court held in Thomas, against the backdrop of the history of deep disputes within Christianity itself:

[A religious-exemption case] is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others …. The [lower] court found [claimant’s willingness to help produce steel, even when it is a raw product to be used in arms, but not tank turrets] inconsistent with Thomas’ stated opposition to participation in the production of armaments. But … Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one.

A claimant may prevail only if his beliefs are sincerely held: If a court concludes that the claimant is lying about his beliefs, then his claim will be rejected. (Courts may often be especially likely to scrutinize a claimant’s sincerity when his beliefs seem to coincide neatly with his secular interests, especially secular financial interests.) And my sense is that courts are indeed, rightly or wrongly, more likely to find a belief to be sincere if it is familiar, probably because it is shared by many of the claimant’s coreligionists. But in principle courts ought not focus on that, and should treat beliefs that are minority beliefs even in the claimant’s own denomination, or even beliefs that are highly idiosyncratic, as fully protected at the same level as standard majority Muslim, Jewish, Baptist, Methodist, etc. beliefs might be.

Of course, this doesn’t mean the claimant in such cases should win, even if the court agrees that his religious belief is sincere. Religious exemption regimes almost never provide absolute protection, and the claim may be defeated by a showing that it would impose “undue hardship” to an employer (under Title VII and similar employment rules) or that it would unavoidably undermine compelling government interests (under RFRAs and similar rules applicable to government actions). But the claim should not be defeated by a showing that many of the claimant’s ostensible coreligionists don’t share the claimant’s beliefs.