Two Concepts of Judicial Deference to Religious Claims

Authors

Chagai Schlesinger

Abstract

Religious exemptions from general laws are everywhere. The U.S. Supreme Court is expanding its exemption doctrine, systemically preferring religious needs over conflicting considerations. This ignites an ongoing debate between those celebrating religious liberties and those fearing their societal costs. Assessing this judicial trend, as this Article highlights, requires noticing how it is facilitated by a broad deferential approach to religious claims, refraining from evaluating their content.

This Article argues that this broad expression of judicial deference is analytically flawed and normatively implausible. The problem lies in the failure to distinguish between two types of religious claims when deferring to them: claims based on religious conscience and claims protecting communal autonomy. The normative implications of this distinction for judicial deference are currently unrecognized.

By examining two representative exemption cases, this Article argues that each type of religious claim triggers a distinct concept of deference. Conscience-based claims evoke a strong argument for secondary deference: a constraint from inquiring into religious content within the process of evaluating the primary conscientious claim. This is because conscience is a subjective, personal matter, whose evaluation in terms of content is constitutionally problematic. By contrast, community-based claims protect religious communal autonomy, not a direct conscientious conviction. Thus, they do not evoke this secondary, procedural deference. Rather, these claims call for deference as the manifestation of the religious right. That is, the Court protects the right to autonomy by expressing deference to religion.

After establishing this analytical distinction, this Article discusses its normative and doctrinal implications. It demonstrates the detrimental consequences of its conflation by the Court, especially in granting religious institutions foreclosing exemptions from anti-discrimination labor law. Finally, this Article proposes a doctrinal alternative: First, courts should recognize the main constitutional value underlying the claim and set the deference baseline. Second, courts should consider how other constitutional values, if any, influence the claim. Despite their analytical distinction, conscience and community considerations are commonly intertwined in practice. Accordingly, this Article’s doctrinal alternative consists of a two-phased approach, sensitive to these possible reciprocal influences.

Rights

© 2025 Brigham Young University Law Review

Recommended Citation

Chagai Schlesinger, Two Concepts of Judicial Deference to Religious Claims, 50 BYU L. Rev. 1355 (2025).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol50/iss5/9