Linda C. McClain (Boston University School of Law) has posted Religious and Political Virtues and Values in Congruence or Conflict?: On Smith, Bob Jones University, and Christian Legal Society to SSRN. From the abstract:

What happens…when values and virtues generated by other nongovernmental institutions conflict with political values and virtues? What does pluralism mean or require in a healthy constitutional democracy with a commitment, on the one hand, to the free exercise of religion and freedom of association, on the one hand, and, on the other, to a principle that free and equal citizenship requires being free from discrimination on certain grounds? Government may afford religious institutions exemptions from certain laws in order to protect religious freedom, but is not constitutionally required to, according to the landmark case of Employment Division, Department of Human Resources of Oregon v. Smith (1990). There, the majority warned that unfettered freedom of religious practice would allow each person “to become a law unto himself,” exempt from all manner of “civic obligations,” while Justice Blackmun’s dissent stressed the basic congruence between the values and interests underlying Oregon’s anti-drug law at issue and those of the Native American Church. This article looks back at Smith as an instructive case about the political and constitutional dilemma over congruence, pluralism, and how to resolve the clash between distinct constitutional values.


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