My rough understanding is that the strict scrutiny cases decide that
strict scrutiny is proper when the government is imposing a substantial burden
on religious conduct in its capacity as sovereign. I don't want to claim that
they apply equally to the government-as-employer, landlord, educator, prison
administrator, and so on. My sense is that few of the state constitutional
case deal with those issues, but I can certainly see how courts could reach
different results in those cases than in the typical government-as-sovereign
case (much as the Supreme Court has with regard to the Free Speech Clause).
And I agree that strict scrutiny should not be equally used in those cases.
I agree that some state RFRAs exclude specific categories of government
action. (I actually think that this is a sound general approach, for reasons I
discuss in my "A Common-Law Model for Religious Exemptions" article.) I was
just giving a general outline of the categories of state approaches with this
issue; I recognize that there are some differencies within each category.
Eugene
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
> Sent: Thursday, May 05, 2011 2:28 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Kansas Court of Appeals adopts strict scrutiny under
> stateconstitution's religious freedom provision
>
> Eugene-- is it your view that the states w cases invoking strict scrutiny
> under
> the state free exercise clause are all holding that strict scrutiny applies in
> every free exercise case or strict scrutiny in just that case (or just that
> arena)?
>
> Obviously, there is a meaningful difference.
> Also--we all do it including myself, but it is somewhat misleading to refer to
> state "rfras" because many don't sweep across all laws like RFRA did. Eg, PA
> excludes laws involving crimes against children.
>
> Thanks--Marci
>
> Sent from my Verizon Wireless BlackBerry
>
> -----Original Message-----
> From: "Volokh, Eugene" <vol...@law.ucla.edu>
> Sender: religionlaw-boun...@lists.ucla.edu
> Date: Thu, 5 May 2011 11:49:26
> To: Law & Religion issues for Law Academics<religionlaw@lists.ucla.edu>
> Reply-To: Law & Religion issues for Law Academics
> <religionlaw@lists.ucla.edu>
> Subject: Kansas Court of Appeals adopts strict scrutiny under state
> constitution's religious freedom provision
>
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