I think the more interesting question
raised by this case – at least based on Marc’s description of it –
is whether courts should provide more rigorous review of regulations burdening religious
organizations or individuals when the law at issue regulates speech or voting
or ballot access. If a law in any of
these areas would be subject to some standard of review less than strict
scrutiny when the law is applied to a secular organization or individual, would
the same law be subject to strict scrutiny with regard to its application to a
religious organization or individual.
In light of the Court’s often stated conclusion that religion is a viewpoint
of speech, does the free exercise clause require that speakers expressing religious
viewpoints – particularly in the context of political campaigns –
must receive greater protection for their expressive activities than speakers
expressing secular viewpoints.
I think the answer to that question has to
be that it does not – and that the few cases touching this issue support
this answer.
Alan Brownstein
From:
[EMAIL PROTECTED].ucla.edu [mailto:[EMAIL PROTECTED].ucla.edu]
On Behalf Of Marc Stern
Sent: Tuesday, October 17, 2006
6:58 AM
To: Law
& Religion issues for Law Academics
Subject: RE: Smith and exemptions
Church Ferry Road Baptist Church v
Higgins was a church's challenge to a Montana statute requiring disclosure of
certain activities and expenditures in regard to ballot initiatives. Most of the opinion addresses free speech
implications of campaign finance law regulation, but the court also addressed
and dismissed the church’s claim that it could not be subject to
disclosure laws on free exercise grounds.
It claimed that since there were some exemptions in the statute (for newspapers
and membership organizations) Lukumi required application of compelling
interest analysis. The court
rejected this submission, on the ground that Lukumi held that a statue was
neutral and generally applicable so long as religion was not the only
non-exempt category. Is that right?
The Third Circuit apparently disagreed in the Newark Police cases.
Marc Stern
|
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