When Religious Practices Become Legal Obligations: Extending the Foreign Compulsion Defense
Michael A. Helfand, 23 J.L. & Religion 535 (2008)
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This article explores whether United States law, in actuality, does not allow individuals to become “laws unto themselves.” While legal scholars in exploring this question have typically focused on the Supreme Court’s decision in Boy Scouts of America v. Dale, this article will focus on a more obscure and rarely discussed area of United States law: the foreign compulsion defense. I will argue that it is the foreign compulsion defense which demonstrates that the law does allow individuals to raise themselves above facially neutral and generally applicable laws when they are faced with an irreconcilable legal conflict between foreign and domestic law. In turn, I will argue that the rationale behind the foreign compulsion defense–to protect individuals from conflicts of law–applies outside the strict boundaries of international legal conflicts; in fact, the rationale applies to conflicts between religious law and United States law, in circumstances eerily similar to those faced by the Court in Employment Division v. Smith. Consequently, I will recommend the adoption of a religious compulsion defense as a natural outgrowth of the already existent foreign compulsion defense; indeed, consistent application of the foreign compulsion rationale suggests that we do protect individuals from legal conflicts, even when the law is religious in origin.
