Wednesday, May 23, 2018
Although I haven't read it carefully, this student note looks like a useful addition to the literature on free-exercise exemptions in the commercial sphere. Although it appears to settle on some of the same considerations as previous articles to delineate some such exemptions as proper while setting limits on their scope, it does so through the (worthwhile) introduction of the concept of religious "vocation" in one's business.
Recent scholarship on religious liberty claims, perhaps following the lead of litigants raising claims for religious exemptions in the wake of Obergefell, has largely focused on arguments that certain forms of business activity are “expressive conduct” that government cannot compel. This Note aims to shift the focus of the debate, by arguing that the expressive conduct line of argument distracts from the real collision these cases involve, between two kinds of identity that are both worthy of protection. This Note's argument is twofold. First, it invokes the concept of vocation, understood as a religious obligation or set of obligations regarding work-related conduct, to suggest that, for many, how one acts in one's work is a key part of one's religious identity. Second, it argues that the concept of vocation can, and does, impose meaningful limits on the availability of exemptions from anti-discrimination laws, mitigating the fear that allowing such exemptions will eviscerate the law's ability to protect against discrimination.