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- Title
CAN THE REASONABLE PERSON BE RELIGIOUS? ACCOMMODATION AND THE COMMON LAW.
- Authors
Vallar, W. Jackson
- Abstract
Since the 1990s, in theory, the Supreme Court has applied rational basis review to neutral and generally applicable laws that incidentally burden religious practice. Strict scrutiny is reserved for those laws that lack neutrality or general applicability. In practice, however, free exercise jurisprudence has developed quite differently. Employing an aggressive exemption strategy, many petitioners have argued, and many courts have accepted, that the existence of but one secular exemption eliminates the neutrality and general applicability of a law. As such, strict scrutiny is applied. For those who would prefer to return to the free exercise jurisprudence that predated Employment Division v. Smith, this result may seem welcome, even a victory. This Note, however, suggests that such an approach should raise concern. This Note argues that this aggressive exemption free exercise theory requires the reasonable person standard of torts to accommodate parties' religious beliefs. Many courts that have addressed the issue have found the same. This Note then surveys the three responses courts have taken to accommodate religious belief in tort law: the "objective" approach, "the reasonable believer" test, and the "case-by-case" method. Fundamental Free Exercise and Establishment Clause problems with the "objective" and "reasonable believer" approaches demonstrate the superiority of a "case-by-case" analysis. That any accommodation is required, however, should give pause. It is not the specific contours of tort law that give rise to the required accommodation, but rather the heavily individualized decision-making process that tort law uses. Individualized decision-making is not a symptom, but rather a feature, of the common law. As such, finding a required religious accommodation to tort law has broad ramifications for our standards-based legal system. This Note argues that this outcome suggests a fundamental flaw with the Court's aggressive exemption free exercise jurisprudence.
- Subjects
UNITED States; FREE exercise clause (Constitutional law); FREEDOM of religion; REASONABLE person standard (Law); FAITH; TORT theory; ESTABLISHMENT clause (Constitutional law); COMMON law
- Publication
Virginia Law Review, 2021, Vol 107, Issue 1, p189
- ISSN
0042-6601
- Publication type
Article