Friday, March 28, 2014

Massaro on Religious Exemptions

A timely article by Toni Massaro has been uploaded.  Its titled "Nuts and Seeds:  Disclosure of Religious Exemptions" and its abstract reads:  

Closely watched cases pending before the United States Supreme Court address whether for-profit businesses may claim a statutory or constitutional right to an exemption from general laws that burden religious expression. These cases are part of a wider trend of expanded constitutional rights for for-profit actors, and of increased judicial and legislative sympathy for exemption requests by religious actors.

This Article offers a first look at steps government might take if the current trend continues, and if more exemption requests for commercial actors are allowed. It steps beyond the vigorous debate over whether to grant an exemption, and explores alternatives that may mitigate third-party burdens imposed by such exemptions, without unduly burdening the exempted commercial religious actors. It examines in particular an “exemption-subject-to-notice” option, under which exempted commercial actors would be required to provide notice to adversely affected third parties, or be subject to government-provided notice of their non-compliance. The Article concludes that a notice condition on exit from generally applicable laws is not a problem-free option. Nevertheless, it is worth exploring as a “third way” for government to manage the inevitable liberty collisions of a pluralistic democracy, and is a superb vehicle for illuminating the relative costs of emerging regulatory patchworks.

http://lawprofessors.typepad.com/gender_law/2014/03/massaro-on-religious-exemptions.html

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