My post was descriptive, not normative. In addition to the two cases, Michael mentions there have been several state RFRA cases decided since 2000. Several of Christopher Lund’s articles describe these cases. I see no pattern that provides a narrative to explain those cases. Chris doesn’t either – although I think he believes, as I do, that these laws are useful in ad hoc circumstances to protect religious liberty.
Perhaps Michael is suggesting that there doesn’t need to be a narrative identifying real world problems to justify new RFRA laws. I think the narratives I described were very helpful before 2000. Certainly proponents of state RFRA bills back then talked about these issues a lot. And legislators at least acted as if they wanted to understand the problems that needed to be addressed by the proposed law. Maybe a narrative isn’t necessary today and the utility of state RFRA bills should be self-evident. I am struck, however, by the difficulty state proponents of these laws seem to experience in explaining why these laws are so important if their goal is not to permit discrimination against the LGBT community. I have not heard anyone argue that the reason for a state RFRA is that the state needs to replicate O Centro and Hobby Lobby at the state level. I think state RFRA bills are defensible, although I would exclude civil rights laws from their coverage and try to deal with possible exemptions from such laws through separate legislation. I am far less confident that I can provide a justification for my views that would be adopted by legislators or persuasive to voters. To do that – particularly when concerns about LGBT discrimination are so obvious and salient – may require a real world narrative. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Worley Sent: Monday, March 28, 2016 1:58 PM To: Law & Religion issues for Law Academics Subject: Re: Arizona, Indiana . . . and now Georgia Well, we've had two major RFRA cases-- O Centro and Hobby Lobby-- since 2000; surely replicating those victories for state claimants does not reflect a focus on LGBT issues. likewise, pre-2000 RFRA cases at the state court level could likewise be used, even if it is true that no such cases have emerged post-2000. I'm not suggesting every state RFRA should be designed to follow how past RFRAs have been applied, but such broad and formerly almost universally praised legislation should be defensible without discussing a relatively narrow aspect of it as the bill's reason for being. On Mon, Mar 28, 2016 at 2:34 PM, Alan E Brownstein <aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>> wrote: Based purely on anecdotal information, I think this issue is based more on timing than on legislative history. I worked on the attempt to get a state RFRA passed in California in 1998. The bill passed both houses of the legislature -- controlled by the Democrats -- only to be vetoed by the Republican governor. While proponents of the bill made the basic abstract arguments in favor of the bill – explaining why free exercise rights should apply against neutral laws of general applicability – the two narratives which were most salient and which seemed most persuasive involved land use regulation problems and the difficulties houses of worship experienced in the zoning process and the problems experienced by inmates trying to practice their faith in prison. With the passage of RLUIPA in 2000, both of these narratives have been taken off the table. As far as I know there is no pattern of state RFRA cases or religious liberty disputes supporting an alternative narrative to justify new state RFRA laws since 2000 other than those involving discrimination against the LGBT community. That is why proponents of new RFRA bills see, e.g. the Governor of Indiana, seem so befuddled when they are asked to explain the problems the law is supposed to solve – if it isn’t designed to accommodate religious objectors to same-sex marriage or other LGBT rights. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Michael Worley Sent: Monday, March 28, 2016 12:26 PM To: Law & Religion issues for Law Academics Subject: Re: Arizona, Indiana . . . and now Georgia Question for list members: What language and/or legislative history would you look for in a bill that has in order to consider it having the same intent as the original RFRA, and other state RFRAs that were passed absent the LGBT controversy now present? On Mon, Mar 28, 2016 at 1:18 PM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: https://gov.georgia.gov/press-releases/2016-03-28/transcript-deal-hb-757-remarks-0 The bill: http://www.legis.ga.gov/Legislation/20152016/161054.pdf _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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. -- Michael Worley J.D., Brigham Young University _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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. -- Michael Worley J.D., Brigham Young University
_______________________________________________ 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.
