By Richard Epstein
What’s sauce for the goose is sauce for the gander. One glaring weaknesses of the modern law on religious freedom is that it turns a blind eye toward neutral rules with a disparate impact on members of minority groups. That is why Justice Scalia was wrong in Employment Division, Department of Human Resources v. Smith to hold that a general ban on the use of peyote could apply with equal force to its use in religious rites by members of the Native American Church. The far better approach is to allow for an accommodation of its use in religious settings that need not extend to recreational use of the same drug. First Amendment speech cases often follow the same view. The state can punish the burning of draft cards and need not make an exception for draft protestors.
I regard this approach as too narrow for both religion and speech. So even if Hastings’ antidiscrimination norm is neutral on its face, its impact on a religious group is not. In dealing with associational freedoms generally, the Supreme Court has recognized that the ability to choose your members is critical to your ability to maintain group identity. I