From: Volokh, Eugene
Sent: Friday, June 15, 2012 10:44 AM
To: Law & Religion issues for Law Academics
Subject: Strict scrutiny, from Sherbert/Yoder to RFRA
I disagree on very much with Marci, and I’m not sure that the
Sherbert/Yoder test would have been inapplicable to the things that NARAL and
CHILD fears.
But Marci’s more general point strikes me as quite correct: At least if read
literally, RFRA enacts an across-the-board strict scrutiny test, which the
Court in the Sherbert/Yoder era never did. For instance, when the government
was acting as prison administrator or as commander of military personnel, the
religious exemption test--like the Free Speech Clause test--was close to the
rational basis framework. Lower courts adopted a similarly deferential test for
probation conditions that incidentally interfered with religious practices.
When the government was acting as employer, some lower courts likewise adopted
fairly (but not entirely) deferential tests borrowed from the Pickering test
applied in government employee free speech cases. There was no agreed-on test
for the government acting as educator in kindergarten through high school, but
courts at least had the option of concluding that the free exercise test--like
the free speech test--should be relatively deferential in these cases, too.
When the government was acting as sovereign, the test was usually strict
scrutiny, but not always. For claimants requesting exemptions from generally
applicable speech restrictions, the free exercise test was the same as the free
speech test, which might differ from strict scrutiny. Content-neutral
restrictions on the time, place, or manner of speech, for instance, are only
subject to a form of intermediate scrutiny under the Free Speech Clause, and
Heffron v. ISKCON held that this same quasi-intermediate scrutiny was
applicable to requests for religious exemptions from such restrictions.
Similarly, some lower court cases suggested that zoning restrictions were
subject to a lower standard of scrutiny.
Now perhaps the same results could be reached by applying strict scrutiny with
an eye towards the special circumstances present in those cases – but that,
even more than the Court’s “feeble in fact” version of strict scrutiny applied
in cases such as Lee, Bob Jones, and the like, would in practice be a way of
avoiding strict scrutiny rather than a way of honestly applying it.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Friday, June 15, 2012 12:09 AM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Religious exemptions in ND
The Sherbert/Yoder test was never treated by the
Supreme Court as a test available across the
board. So NARAL's concerns and CHILD 's
Issues would not have been controlled by it
The concern is not over enforcement but rather enforcement
Giving religious groups more power to endanger children is
not a good idea.
Marci
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