Between Accommodation and Favoritism: The Need for a Political Power Factor in Religious Exemption Adjudication

This Article enters the current heated debates on religious exemptions with a modest proposal: political power should be central to religious exemption analysis. The Article proposes a factor familiar from equal protection law— the Political Power Factor— to be used in the adjudication of religious exemptions. Drawing on recent Supreme Court cases, the Article explores how and when political power be- comes a democratic problem and an Establishment Clause challenge. It argues that extra-accommodation of objectors whose views are backed by political power in political processes may violate the Establishment Clause’s mandate against favoritism of particular religions or religion in general. The Political Power Factor is proposed as a tool to adjudicate political power and thereby address the identified Establishment Clause concerns. The Political Power Factor gauges the representation of the religious objector’s viewpoints in the given polity’s political processes. When a viewpoint is well-represented in political processes, the factor weighs against granting an exemption, and vice versa. While difficult boundaries must be drawn, judges can engage in this line of inquiry without violating long-standing principles of judicial restraint in this area of law.
The time to engage in a careful political power analysis is now. Religious exemptions have been caught in the crossfire of the culture wars, and political discourse on the boundaries of the current religious exemption regime is polarized. Facilitating boundary-drawing for an evolving religious exemption regime is in the interest of both those who fear this regime’s rapid expansion and those who are concerned with its long-term stability.