Religious Exemptions to Neutral Laws of General Applicability and the Theory of Disparate Impact Discrimination

Abstract

This Article argues that the theory undergirding religious exemptions to neutral laws of general applicability represents a viable theoretical and legal justification for race-based disparate-impact policies such as Title VII.  Though not always expressly stated as such, one can best understand the theory underpinning the exemptions approach to religious free exercise as a paradigm of disparate impact discrimination.  Similar to disparate-impact discrimination in the context of race and employment policy, the statutory level serves as the domain of execution for religious-based models of disparate impact.  Just as Washington v. Davis relegated remedies for race-based disparate impact in employment to the statutory level, the Court’s ruling in Employment Division v. Smithserved the same function in the context of religion.  However, in sharp contrast to Title VII and the paradigm of race-based disparate impact in the context of employment, the Supreme Court has not evinced hostility toward disparate-impact legislation in the context of religious free exercise; it has not found a tension between the positive right to be judged as an individual and the tendency of Congress and other legislative bodies to engage in explicitly religious-conscious decision-making.  Constitutionally speaking, there is no tenable method of differentiating between race-conscious and religious-conscious decision-making.  Because there is no legitimate method of constitutional differentiation here, and because the Court has not interpreted the legal-theoretical model of religious exemptions as offending the Equal Protection Clause, this Article posits that the theory undergirding religious exemptions to neutral laws of general applicability represents a viable theoretical and legal justification for race-based disparate-impact policies such as Title VII.