James M. Oleske Jr. (Lewis & Clark Law School) has posted Lukumi at Twenty: A Legacy of Uncertainty for Religious Liberty and Animal Welfare Laws. The abstract follows.
Twenty years after the Supreme Court’s decision in Church of the Lukumi Babalu Aye v. City of Hialeah, uncertainty reigns in the lower courts and among commentators over the issue of constitutionally compelled religious exemptions. Despite the Court’s general disavowal of such exemptions in Employment Division v. Smith, Lukumi appeared to breathe life into a potentially significant exception to Smith. That exception – which this Article calls the “selective-exemption rule” – provides that religious exemptions may still be required by the Free Exercise Clause when the government has selectively made available other exemptions to a law.
This Article addresses the key unresolved questions about the scope of the selective-exemption rule and challenges the received reading of the leading circuit court decision interpreting the rule. Relying heavily upon that reading, prominent religious liberty advocates have been pressing for a remarkably broad Read more