FRAGILITY, NOT SUPERIORITY? ASSESSING THE FAIRNESS OF SPECIAL RELIGIOUS PROTECTIONS.

• Author: Girgis, Sherif

INTRODUCTION 149 I. THE FAIRNESS DEBATE 156 A. The Question 156 B. Existing Answers 159 C. Limitations 162 II. STEPPING BACK: THE WHAT AND WHY OF OUR CIVIL LIBERTIES 164 A. The Adequate Alternatives Principle 165 1. Free Speech 167 2. Abortion 167 3. Travel 168 4. Pre-Smith Free Exercise 170 B. Gauging Need: Fragility and Exposure 171 C. Deploying the Fragility-Exposure Framework 174 1. Tying Civil Liberties to Fragile and Exposed Interests 174 2. Using Fragility and Exposure to Test the Case for a Civil Liberty 177 3. Using Fragility to Limit a Liberty's Scope 178 III. HOLES IN THE FAIRNESS CRITIQUE 181 A. What to Look For 181 B. What One Finds 183 1. Overview 183 2. A Closer Look: Secular Conscience 185 a. Existing Examples 186 b. Other Possible Examples 187 c. A Final Possible Objection 188 IV. RELIGION'S SPECIAL NEED: A LIVE POSSIBILITY 189 A. Why Religious Interests Are More Fragile and Exposed Than Some Others 190 1. Exposure 190 2. Fragility 190 a. Filtered and Nonvoluntary 192 b. Particular 193 B. Whether Religious Interests Might Be More Fragile as a Rule 198 C. Whether a Fragility Defense Would Be Over- and 199 Under-Inclusive CONCLUSION 200 INTRODUCTION

For thirty years, law-and-religion scholars have debated the fairness of constitutionally protecting religion but not deep secular commitments and pursuits. To be clear, the question is not in the first instance about positive law--about what liberties courts should enforce now, given the law as it now exists. The question is about something else--about whether a positive-law regime that protected religion but not other deep commitments would be fair. Yet today this question of morality and constitutional design has practical implications for law. It speaks to one of the more significant choices in religion law to face the Supreme Court in a generation: whether to reverse Employment Division v. Smith, the 1990 case that eliminated free exercise exemptions from laws that are neutral toward religion. (1) Three Justices have voted to reverse Smith, and two are openly deliberating about whether to join them. (2) Before reversing, the Court would have to conduct a stare decisis analysis, which turns partly on moral and policy considerations. (3) And that leads to the question driving the fairness debate: is it fair--especially to nonbelievers--to grant exemptions from neutral laws for religion but not for other cherished interests, like secular conscience, care-giving bonds, education, or professional fulfillment? Why protect worship more than yoga or Sikh convictions more than secular-humanist ones, if these interests matter equally to different people? Even if Smith survives, this debate is relevant for evaluating (and revising) existing statutes that recreate Smith's exemptions regime in some federal and state contexts. (4) Moreover, this long and deep debate also matters in its own right.

This Article clarifies the fairness debate and reveals a major gap. It offers a more complete and rigorous analytic framework for filling that gap and for addressing related issues about all civil liberties--a framework based on the most comprehensive account to date of a key function of our civil liberties. And the Article uses that framework to explore an overlooked possibility: some limited religious protection may be justified not because religion is more worthy of protection, but because it's more needful. Or, in this Article's terms, religion might be more fragile and exposed.

It has long been a "daunting challenge" to explain "whether and why religion should" receive special protection, (5) and most scholars writing on this issue have argued powerfully that it should not. (6) They consider religious exemptions an "indefensible special privilege," (7) whose injustice only spreads in modernity, as more people forge identities apart from religion. And academic defenders, with only minor variations, (8) have accepted the critics' premise that for special religious protections to be fair, religion must matter more than other commitments. (9) Some defenders of special religious protections thus concede "there is no convincing secular-liberal argument" (10) for their view. Others offer unabashedly theological defenses. (11) Some have flipped to the critics' side. (12) Those relying "on nontheological grounds" are dwindling. (13)

Comparing different interests' importance is critical to the debate, which has produced a wealth of insights. But common on both sides is the unsound assumption that importance is all that matters. (14) As Professor Fallon notes, "what rights are recognized" turns partly on "which interests need judicial protection." (15) For special religious protections to be fair, religion need not be more important. It might be "special" (or in other words, fair to single out) not because it's more worthy, but because it's more needful of the kind of protection at stake. This Article is the first systematic effort to explore that possibility. (16)

But measuring the need for protection requires something else absent from the debate: a sustained look at the protection at issue. The debate is often billed as one about whether religion warrants "special" legal status, full stop. (17) So framed, the question is unanswerable. One cannot judge the fairness of special rules for religion without a detailed account of the rules at stake.

Part I's review of the arguments advanced in the fairness debate reveals its precise focus. (18) The debate is about whether to shield religion (but not certain other interests) from incidental burdens. It is about exemptions from laws that are neutral toward religion--the exemptions eliminated by Smith (19) and now poised to return. As Part I catalogues, the defenses of these protections are vulnerable, and the critiques incomplete. Defenses take the contested view that religion has more value. (20) The critiques ignore that religion might simply have more need of protection. (21)

Of course, an interest's need for protection would not matter if civil liberties came for free. Then it would make sense to protect every important interest, secular or not. But since each civil liberty has costs, (22) it can be fair to prioritize those interests that most need this protection. (By analogy, all arbitrary discrimination is unjust. Yet it's fair to ban only discrimination based on race, sex, and the few other traits that most need it.)

To develop a measure of need for protection, Part II reviews how our constitutional liberties protect against incidental burdens. Here a surprisingly constant (and largely unnoticed) pattern emerges. The protection that religion enjoyed pre-Smith (and might enjoy post-Smith, (23) and enjoys in limited contexts by statute (24) ), is similar to that provided by our other liberties: speech, abortion under Planned Parenthood v. Casey, (25) gun rights, and travel. As our law's trademark approach to incidental burdens, this scheme can be used to develop a general measure of different interests' need for this protection.

Exactly when do these liberties offer a shield from the burdens imposed by neutral laws? The law's answer is given by what I call an adequate alternatives principle. (26) This principle triggers heightened scrutiny of a neutral law that burdens a civil liberty only when the burden is "substantial" or "undue." The principle deems legal burdens undue if they leave no adequate alternative way of exercising the liberty. Alternatives are adequate only if they let people pursue the interests served by that liberty to about the same degree and at not much greater cost.

Part II flips this formula around to derive a rigorous analytic framework for gauging when an interest needs an adequate alternatives principle's coverage. The framework measures how much an interest is likely to face the problem to which this principle is our law's solution. First, an interest will have greater need of this protection, the likelier it is that a law burdening some means to that interest will leave no adequate alternatives. Or, as I'll put it, the more "fragile" the interest is. But second, even an interest that is fragile--because burdens on it are likely to be too heavy--will not need protection if it rarely faces regulatory burdens at all, heavy or not. Call this second feature of an interest--how often it's burdened at all, absent a civil liberty's protection--"exposure." Together, an interest's fragility and exposure together will tell us its overall need for a civil liberty from incidental burdens.

This framework reflects precedent. It highlights distinct sources of different interests' need for civil liberties. It lays bare their unique value to minorities, who need and seek exemptions at disproportionally high rates (27) (in a striking variety of cases). (28) So the framework is useful for assessing the need for--and hence the desirability of having--other civil liberties, current or new. And it can help courts narrow civil liberties like religion to apply only when people's interests are fragile and exposed, and thus really need protection. Part II ends by briefly illustrating each of these payoffs of the framework.

With this framework in hand, Part III shows that fairness critics have offered little evidence (anecdotal or otherwise) that other interests need the protection at issue. The debate rarely features even realistic fictional examples of neutral laws in our system subjecting important interests to undue burdens. (29) So for all the critique has shown, religion may still be special in this respect, and thus warrant special protection: It may be the rare important interest that's also fragile and exposed.

Part IV then shows that this scenario is a live possibility. It offers prima facie reasons--tentative grounds--for thinking religion might indeed be more fragile than other important interests. One Section takes an inductive and sociological approach to doing so, the other a more systematic...