Interestingly, Douglas Laycock, one of the advocates for religious freedom laws like RFRA, disagrees.
Laycock’s brief is remarkable because of the way it turns on its head the plaintiffs’ argument that the nonprofits are victims of an overreaching government. In fact, Laycock argues, “religious liberty can be endangered by exaggerated claims and overreaching as well as by government intransigence and judicial under-enforcement,” and that the nonprofits’ arguments “endanger religious liberty, both legally and politically.”
He argues first that the nonprofits are, in effect, seeking “absolute deference” from the court on their claims of substantial burden. He argues that adopting this standard “would lead to untenable consequences.”
For example, he writes, a plaintiff could claim “God will punish the country and all its citizens,” if a “controversial public policy is not reversed.” That “would state a claim of substantial burden to which the courts would owe absolute deference,” the brief cautions.
What’s more, Laycock warns, the nonprofits’ overbroad argument that they are entitled to the same exemption as churches threatens the entire system of religious exemptions across the country.....
Whatever the outcome, this brief by an erstwhile ally urging extreme caution on taking religious exemptions too far signals that the plaintiffs in these cases may have overplayed their hand.It will be interesting to see how this plays out.