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The Congress and the President that
enacted RFRA thought, rightly or wrongly, that there was a palpable, and not
lurking, constitutional error. On that point I agree with that Congress
and that President. But even if there were an error on the constitutional
point, it does not matter, unless your position is that Congress cannot, in the
exercise of policy-based discretion, decide that the Courts have to do the job
that Roberts’ wry comments referred to. In any event, the Court
ruled 8-0 that Congress could. Your basic objection, which you have
repeated many times, is, if I have it right, that a number of police power
health, safety and regulatory concerns properly, if not necessasrily, trump the
autonomy claims of religious individuals and persons. That may or may not
be right, but surely doesn’t Congress get to decide whether this is true
or not either as a general proposition or in specific cases? After all
Congress is the source of the relevant regulatory regimes in the first place. I don’t know how important it is
that minors drink the tea. Why is drinking it per se bad for minors, or
for anybody else? It is only bad because Congress said it was, at least
as a general proposition. However, Congress can properly decide to allow
for a little play in the joints, can’t it? You seem to want to hem
in Congress’ policy discretion on matters of this sort, and there is no
Constitutional basis for doing so. If Congress passes bad – but constitutional
– laws, then the answer is to elect a different Congress. From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] I am not going to belabor the point,
Marty, but I strongly disagree with your interpretation of the application of
standards of review. The strict scrutiny standard puts the courts in the
business of second-guessing legislative judgment, normally where there is a
lurking constitutional violation. RFRA strict scrutiny is not triggered
by any lurking constitutional error, but rather bare second-guessing.
Trying to normalize what RFRA demands -- imposition of a constitutional
standard of review through legislation (which is only reflected in RLUIPA)
is a mistake in my view. In this case in particular, the
inadequacies of the courts are shown. The Supreme Court was in no
position to investigate whether this drug is different from peyote, or, more
importantly from my point of view, whether the drug is routinely given to
minors (as it is). Had this specific exemption request been part of a
legislative inquiry, the regular use by minors could have been taken into account,
and, I presume, the compelling interest for denying its use documented.
There was no place for such an inquiry in the Court's appellate review.
In any event, the Court is absolutely right that the federal government
asked for it, and here they have it. Marci In a message dated 2/21/2006 12:29:30
P.M. Eastern Standard Time, [EMAIL PROTECTED] writes:
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