I am not a fan of Smith and I really think the state should be required to accommodate reasonable requests. Just what constitutes a "least restrictive alternative" does, of course, vary with the magnitude of the state's interest as well as with the importance (howsoever calculated) of the interest claimed by the religious adherent. Though I am a proponent of accommodation in this sort of situation, I am much less certain that it should be a court-imposed accommodation and I am much less certain that even strict scrutiny will throw out the state's chosen method of protecting its interest here, though it may in fact do exactly that.
I think Mr. Henderson's remark completely misses the mark -- the state need not defend all of its decisions on the basis of strict scrutiny and history and tradition and current desires are plenty good enough to support the decisions of the school board as to school year and number of days and absences policies and all the rest. The only question is to what extent an exception MUST be carved out when faced with a religious claim based upon a discretionary religious observance -- the adherents have a choice of attending or not.
I think the school board should, as a matter of policy, in general permit this exception. But then the problem arises of drawing the line the next time. Compulsory education, compulsory attendance are the rules. School is not really an "oh, I think I'll drop in today" sort of proposition. (Except during hunting season where I grew up -- an amazing amount of "hunter's flu" excuses showed up during hunting season (illness absences were excused, hunting absences were not).)
Steve
-- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/
"There are obviously two educations. One should teach us how to make a living and the other how to live."
James Truslow Adams
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