(For an introduction to this series of posts, see here.)
1. Say that you feel a religious obligation to use a prohibited drug — hoasca (the drug at issue in Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006)), peyote, marijuana, or LSD.
Or say that you’re a landlord who feels a religious obligation not to rent to unmarried couples (or same-sex couples), even though state law bars marital status discrimination or sexual orientation discrimination in housing.
Or say that you feel a religious obligation to help someone commit suicide, in violation of state law — or a religious obligation not to testify against your parent, your child, or a coreligionist, even when you have a legal duty to do so.
Should you be entitled to an exemption from the generally applicable law, because of your religious beliefs? Or should the government be free to apply the law to you just as it does to others?
Until about 1960 (more or less), the rule was what one might call the statute-by-statute exemption model — religious objectors got exemptions if and only if the statute provided for one, as, for instance, draft law historically had. Judges got into the act only insofar as they created common-law exemptions from judge-made common-law rules, and these exemptions were trumpable by statute. The clergy-penitent privilege, which is an exception from the duty to testify, was one example.
But then in Braunfeld v. Brown (1961) the Supreme Court seemed to suggest that the Free Exercise Clause might sometimes constitutionally mandate exemptions. And in Sherbert v. Verner (1963), the Court expressly adopted the constitutional exemption model, under which sincere religious objectors had a presumptive constitutional right to an exemption. Wisconsin v. Yoder (1972) reaffirmed this, and the period from 1963 to 1990 is [...]