Michele Bratcher Goodwin and Allison M. Whelan, Constitutional Exceptionalism, 4 U. Ill. L. Rev. 1287 (2016).
Exceptionalism is the perception that a country, society, institution, movement, or time period is ‘‘exceptional’’ (i.e., unusual or extraordinary) in some way and thus does not need to conform to normal rules or general principles. In recent years, a problematic trend has emerged: religion being used to justify harming women, people of color, member of the LGBTQ community, and even inflicting injury on children. Such cases are escalating. Frequently, those who wish to impose harms on others in the name of religion claim an exception by statute or the constitution to do so. This Article argues that the use of religion to inflict injury or harm on others is a form of impermissible discrimination. Disturbingly, judicial deference to religiously based discrimination misreads free exercise of religion and expands the doctrine beyond its reasonable and legitimate limits. This Article selects sex-based bias as an example because religiously based discrimination targeting sex and gender reveals hostility to the concerns of women as a broad class, including all women with the potential to become pregnant, non-married pregnant women, members of the LGBTQ community, and transgendered females.
Our thesis is that religiously based discrimination targeting sex penalizes pregnant and contraceptive-seeking women for their status, carving out unconstitutional distinctions between men and women. Such bias undermines women’s constitutional rights to be treated as equal citizens, secure in their bodies. We argue that the Free Exercise Clause of the First Amendment neither creates an ‘‘exception’’ nor grants a right to impose harmful conditions and injuries on others, including women.