RE: Smith and exemptions

[Marc Stern]

John Taylor is trying to post the full opinion, a task well beyond my technical competence. I tend to agree with Alan about speech based claims of this sort not being decided differently because the speaker is religious. In any event, aside from the exemption point, I have trouble seeing a particular burden on religion by campaign finance disclosure laws-or for that matter charitable registration laws.  However, the trial judge can hardly be faulted for going through a complaint cause of action by cause of action and dispensing with all the claims seriatim. Alan’s point reflects a deeply secular point of view-that religion is just another ideology. David is quite right to question whether the constitution accepts that conceptualization of religion. It is ironic, though, that Alan’s point is underscored by the various cases beginning with Widmar in which religious speakers have urged exactly his position to gain access to public places and to justify public funding of religious enterprises. Marc Stern   From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of David E. Guinn Sent: Tuesday, October 17, 2006 12:30 PM To: Law & Religion issues for Law Academics Subject: Re: Smith and exemptions   I agree with Alan's refinement of the issue -- but wonder about his solution.  If one collapses protection of religion into speech, why is religion relevant?  Are there not characteristics of religion, such as it associational or communitarian aspects, that are unique to religion? If the religion clauses have any independent, non-speech content, wouldn't that require some consideration of these non-speech factors? David E. Guinn JD, PhD   Recent Publications Available from SSRN at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608   ----- Original Message ----- From: Brownstein, Alan To: Law & Religion issues for Law Academics Sent: Tuesday, October 17, 2006 11:15 AM Subject: RE: Smith and exemptions   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 _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.

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