I'm a little confused by this. The federal government doesn't lose its obligation to comply with RFRA simply because it chooses to borrow state procedures rather than coming up with its own, right? And how are states' rights implicated in a situation where federal law (RFRA) is being invoked to restrain federal agents (the Bureau of Prisons in Hammer)? (Apologies in advance if I'm misunderstanding your post.)
From: [EMAIL PROTECTED]
Date: Mon, 10 Jul 2006 10:48:44 -0400
To: religionlaw@lists.ucla.edu
Subject: Re: News of Employment Division v. Smith not reaching some district courts?
When the federal courts ask the question whether a state law satisfies RFRA, they violate principles of federalism -- even if the federal law recognizes the force of state law. Nelson's interpretation is an extraordinary circumvention of not only Boerne, but states' rights in general.I think the ignoring of Smith is more insidious, and arises in no small part from law clerks who have been taught that Smith is only to be applied in the breach, despite its broad language and application. The orthodoxy of the academy has worked extremely hard to push Smith into a small corner. I thought the most interesting aspect of the O Centro decision this last Term was the Court's matter-of-fact embrasure of the Smith approach, including its spirit. This spirit of the law has been relatively slow to reach the district court and academic level.MarciMarci A. HamiltonPaul R. Verkuil Chair in Public LawBenjamin N. Cardozo School of Law55 Fifth AvenueNew York, NY 10003In a message dated 7/9/2006 2:12:39 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes:It's a little more complicated than district courts simply forgetting about Smith, isn't it? As a result of Boerne, RFRA now only modifies federal law and so it only applies to federal inmates (like Hammer) and not to state inmates (like Workman and Alley). But it's easy to see how courts get confused. Because federal execution law explicitly incorporates state law, the ultimate question examined in Hammer is (and should be) whether Pennsylvania's state autopsy statutes satisfy RFRA. The Workman and Alley courts see RFRA being applied to state law and simply follow along. They've read Hammer wrongly -- they haven't noticed the difference between state law applying of its own accord (where RFRA does not apply) and state law applying at the direction of federal law (where RFRA does apply). But that's an understandable mistake, and not at all the same as district courts not hearing about Smith.
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