Re: Breaking news in federal RFRA case
Read the legislative history behind RFRA from beginning to end --the administration of illegal drugs to children by religious groupsis not there. It is awholesale reconstruction of history to believethat Congress considered the issue in any way, shape, or form. The vast majority, i.e., over 95%, of the legislative history involves castigating the Supreme Court for Smith. The practical consequences of RFRA were never approached, because Congress's purpose was to reverse a Supreme Court decision, without any meaningful consideration of what that would accomplish at a policy level. Now, there are post hoc justifications for RFRA proffered all around, but they do not displace what Congress actually considered and actually knew at the time it was enacted. As to policy choices,it is my view that RFRA isunsound constitutionally and policy-wise, but the latter does not underminethe former. And, yes, the placement of a drug on Schedule I does, indeed, end the discussion when the drugis being administered to minors. The fact the drugs were delivered in a religious context does not change the extraordinary interest of the children. Marci In a message dated 2/23/2006 2:36:19 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: You assume that the placement of a drug on Schedule I ends the discussion. I hope that you do not think that it is jesting to suppose that that placement does not end the discussion. Congress surely must have some sense of the consequences of its decisions (1) to place the drug on Schedule I and (2) to enact RFRA. ___ 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.
RE: Breaking news in federal RFRA case
I will just note that Congress has the discretion to decide how to handle the matter. You just dont agree with the approach that Congress took. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Friday, February 24, 2006 10:48 AM To: religionlaw@lists.ucla.edu Subject: Re: Breaking news in federal RFRA case Read the legislative history behind RFRA from beginning to end --the administration of illegal drugs to children by religious groupsis not there. It is awholesale reconstruction of history to believethat Congress considered the issue in any way, shape, or form. The vast majority, i.e., over 95%, of the legislative history involves castigating the Supreme Court for Smith. The practical consequences of RFRA were never approached, because Congress's purpose was to reverse a Supreme Court decision, without any meaningful consideration of what that would accomplish at a policy level. Now, there are post hoc justifications for RFRA proffered all around, but they do not displace what Congress actually considered and actually knew at the time it was enacted. As to policy choices,it is my view that RFRA isunsound constitutionally and policy-wise, but the latter does not underminethe former. And, yes, the placement of a drug on Schedule I does, indeed, end the discussion when the drugis being administered to minors. The fact the drugs were delivered in a religious context does not change the extraordinary interest of the children. Marci In a message dated 2/23/2006 2:36:19 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: You assume that the placement of a drug on Schedule I ends the discussion. I hope that you do not think that it is jesting to suppose that that placement does not end the discussion. Congress surely must have some sense of the consequences of its decisions (1) to place the drug on Schedule I and (2) to enact RFRA. ___ 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.
RE: Breaking news in federal RFRA case
Given that RFRA was a response to a decision that dealt with drug use, it seems unlikely that it never crossed Congress collective mind that the Act would be applied in cases involving drugs. But even if your point about post hoc justification were true, then it seems equally post-hoc to use the allegedly grave threat RFRA poses to children as a tug-on-the-heart-string argument against RFRA now that constitutional arguments have been rejected. Moreover, if there is actual evidence of danger to children as extraordinary as you claim in a specific case, theres little reason to think that courts will not be able to sensibly apply RFRA to take account of that interest. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Friday, February 24, 2006 10:48 AM To: religionlaw@lists.ucla.edu Subject: Re: Breaking news in federal RFRA case Read the legislative history behind RFRA from beginning to end --the administration of illegal drugs to children by religious groupsis not there. It is awholesale reconstruction of history to believethat Congress considered the issue in any way, shape, or form. The vast majority, i.e., over 95%, of the legislative history involves castigating the Supreme Court for Smith. The practical consequences of RFRA were never approached, because Congress's purpose was to reverse a Supreme Court decision, without any meaningful consideration of what that would accomplish at a policy level. Now, there are post hoc justifications for RFRA proffered all around, but they do not displace what Congress actually considered and actually knew at the time it was enacted. As to policy choices,it is my view that RFRA isunsound constitutionally and policy-wise, but the latter does not underminethe former. And, yes, the placement of a drug on Schedule I does, indeed, end the discussion when the drugis being administered to minors. The fact the drugs were delivered in a religious context does not change the extraordinary interest of the children. Marci In a message dated 2/23/2006 2:36:19 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: You assume that the placement of a drug on Schedule I ends the discussion. I hope that you do not think that it is jesting to suppose that that placement does not end the discussion. Congress surely must have some sense of the consequences of its decisions (1) to place the drug on Schedule I and (2) to enact RFRA. ___ 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.
Re: Breaking news in federal RFRA case
First, children's issues with religious entities are not "tug-on-the-heart-strings." They are real, and you betray your preference for religiousentities at all costsover children's welfare with such verbiage. Second, how do you propose the court on remandtake into account the fact that children are receiving these drugs? By the way, it's not just DMT, but marijuana and other sedatives as well, at least according to the members emailing me, and arguing that children benefit from these drugs. Marci In a message dated 2/24/2006 3:19:03 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Given that RFRA was a response to a decision that dealt with drug use, it seems unlikely that it never crossed Congress’ collective mind that the Act would be applied in cases involving drugs. But even if your point about post hoc justification were true, then it seems equally post-hoc to use the allegedly grave threat RFRA poses to children as a tug-on-the-heart-string argument against RFRA now that constitutional arguments have been rejected. Moreover, if there is actual evidence of danger to children as extraordinary as you claim in a specific case, there’s little reason to think that courts will not be able to sensibly apply RFRA to take account of that interest. ___ 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.
Re: Breaking news in federal RFRA case
Doug--The nine-day trial for the preliminary injunctioninvolved only the information generated by the parties. Thoseinterests in the United States who could have expanded the inquiry had no way to become part of the discourse, as they would have in the legislature. Thus, I am certain thatthere is not a single question during that 9 days raised by either party or the Judge regarding the effect of this drug use on children, questions that would have been raised by any number of entities in the United States that either advocate for children or that deal with regulating religious entities and children. I will not concede that Congress had any idea about other drug useby religious entities when RFRA was enacted, because itnever occurred to them. You can extrapolate all you want, but you were there. The discourse was not about the actual impact of the law, but rather about the Court. As to the"great puzzle" of my theory -- you are confusing two separate points.My firstpoint is that the legislature is simply better equipped for a broad-ranging inquiry than any court. It's just a fact that the legislature draws more interests into the fray and that the courts are limited by the case and controversy requirement, and, therefore, cannot. If you disagree with this point, we have a fundamental disagreement over both Articles I and III. But the institutional competence point should not be confused with my critique of the legislative accommodation process. There are the constitutionally appointed roles of the branches and then there are the ways in which they act in certaineras. The essential point of the book is that United States society operates from a pollyanna attitude toward religion, and that legislators have been part of this myth that religion is always good for you. The "horrorstories," as you call them (I would just call them facts),provide data intending to wake up the American public to reality -- sometimes religious entities aregood for others, andsometimes, they are not at all. I praise some eminently sensible accommodations, but I criticize others where the legislative branch reacted reflexively to religious groups, without asking the hard questions. I would make the same criticism of Congress when it enacts, say,environmental law. This is a very small extension from my previous work on the role of the legislature, and the problems in delegation -- in much of my work, I have focused on the responsibilities of the legislature, its obligations, and sought ways to shore up accountability. God vs the Gavel simply applies those insights to situations involving religious groups, arguing that one way to increase accountability with respect to religious accommodation is for legislatures to investigate such requests and do so in the public spotlight. Whatever criticism I levy against the legislature does not increase the courts' capacity to do the sort of wide-ranging inquiry that needs to be done with respect to religious accommodation. Marci In a message dated 2/24/2006 3:35:31 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: No one claims that Congress decided in its consideration of RFRA whether children could safely consume hoasca or any other drug in a religious ritual under conditions to be specified. What Congrss decided was that all such issues of conflict between general law and religious practice required individual examination, and that only the courts were equipped to provide that examination, applying a standard enacted by Congress. The nine days of trial in UDVgave the judge vastlymore information about hoasca and its religious use than Congress had about DMT when it put DMT on schedule I, and infinitely more information than Congress had about religious use of hoasca when it put DMT on schedule I. Congress had literally no information; it had never heard of hoasca when it put DMT on schedule I. In the amendments to the American Indian Religious Freedom Act, Congress authorized religious use of peyote with some exceptions. The legislative history, and if I recall correctly, the text of the Act as well,are explicit that cases within the exceptions are subject to RFRA. So in drug applications where Congress thought it had enough information to enact a rule, it enacted a rule, and in applications where it thought it did not have enough information, it enacted RFRA's standard and directed courts to apply that standard. One of the great puzzles of Marci's position, and especially her book, is that she has no confidence in the adversary process of adjudication, and apparently great confidence in the process of legislative hearings and fact finding, which are generallyad hoc andpoliticized. Legislatures write bills in general terms, and it is quite common for those bills to apply to facts of which the legislature was totally ignorant. Most of her horror
Re: Breaking news in federal RFRA case
In a message dated 2/23/2006 2:04:12 AM Eastern Standard Time, [EMAIL PROTECTED] writes: I don't know anything about the dangers of hoasca, If hoasca contains DMT, it is an extremely dangerous drug, potentially more powerful than LSD. The dissociation and hallucinations it causes cannot only be acutely terrifying but lingering effects might continue some hours after the "trip" is over.I shudder to think the effects it might have on children. The effects of a sip or two of wine isn't in the same ball park as the effects of psychotropic drugs. BobbyRobert Justin LipkinProfessor of LawWidener University School of LawDelaware ___ 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.
RE: Breaking news in federal RFRA case
The government spent a year preparing for the preliminary injunction hearing. The hearing itself lasted nine days. The judge spent a year digesting the evidence and writing the opinion. This was, in all but name, a full trial. If there any evidence that religious use of this drug is dangerous in the quantities and the settings used by UDV, the government had every opportunity to provide that evidence. There was in fact no evidence of the kinds of effects Bobby associates with LSD, in part because of the quantity of DMT naturally occurring in the leaves used to brew the tea is apparently very small, in part because the effects of the drug are responsive to setting, mood, and expectations, and religious use is not the same as party use. There were studies in Brazil on thousands of worshipers;rates of psychiatric incidents were not significantly different from rates in the general population. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax) From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED]Sent: Thu 2/23/2006 5:43 AMTo: religionlaw@lists.ucla.eduSubject: Re: Breaking news in federal RFRA case In a message dated 2/23/2006 2:04:12 AM Eastern Standard Time, [EMAIL PROTECTED] writes: I don't know anything about the dangers of hoasca, If hoasca contains DMT, it is an extremely dangerous drug, potentially more powerful than LSD. The dissociation and hallucinations it causes cannot only be acutely terrifying but lingering effects might continue some hours after the "trip" is over.I shudder to think the effects it might have on children. The effects of a sip or two of wine isn't in the same ball park as the effects of psychotropic drugs. BobbyRobert Justin LipkinProfessor of LawWidener University School of LawDelaware ___ 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.
RE: Breaking news in federal RFRA case
You assume that the placement of a drug on Schedule I ends the discussion. I hope that you do not think that it is jesting to suppose that that placement does not end the discussion. Congress surely must have some sense of the consequences of its decisions (1) to place the drug on Schedule I and (2) to enact RFRA. Thus the accommodation, by your view is blind. But not by mine, or by Congress, for aught that appears. Why is the enactment of RFRA any more formalistic than the enactment of the drug law that establishes Schedule I? Isnt the truth of the matter that you have one policy perspective, one that, apparently, is not shared by Congress? From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Wednesday, February 22, 2006 7:58 PM To: religionlaw@lists.ucla.edu Subject: Re: Breaking news in federal RFRA case I hope the paragraph belowwas in jest. Schedule Idrugs are drugs that are considered to have no beneficial use and to be dangerous. If children are drinking the DMTin the tea, they are the victims of child abuse. I cannot believe thatanyone on this listis willing to give a group a pass in abusing children just because it is religious.It is one thing for adults to choose to take such drugs, but quite another for that group to provide the drugs to children. With respect to RFRA, it's error lies in its blind accommodation. It is a blind handout to religion. As I argue in God vs the Gavel, I have no problem with legislative accommodation, and in fact in many circumstances support it.But to be legitimate,it must be passed pursuant to consideration of the public good (i.e., Congress fulfilled its constitutionally appointed duty to make policy choices) and not be merely, as RFRA was, a special interest gift. I may disagree with the public policy balance, which is a wholly different matter. Under RFRA, Congress shuffles those hard policy choices over to the courts. The defenses of RFRA as responsible congressional enactment are formalistic in the extreme. Marci In a message dated 2/22/2006 6:19:26 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: I dont know how important it is that minors drink the tea. Why is drinking it per se bad for minors, or for anybody else? It is only bad because Congress said it was, at least as a general proposition. However, Congress can properly decide to allow for a little play in the joints, cant it? You seem to want to hem in Congress policy discretion on matters of this sort, and there is no Constitutional basis for doing so. If Congress passes bad but constitutional laws, then the answer is to elect a different Congress. ___ 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.
RE: Breaking news in federal RFRA case
Did anybody else notice that the Chief Justice in Gonzales acknowledged that Smith overturned Sherbert, notwithstanding Justice Scalias claim in Smith that the court had never held that burdens on religious practice need compelling justification? Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, February 23, 2006 9:31 AM To: religionlaw@lists.ucla.edu Subject: RE: Breaking news in federal RFRA case The government spent a year preparing for the preliminary injunction hearing. The hearing itself lasted nine days. The judge spent a year digesting the evidence and writing the opinion. This was, in all but name, a full trial. If there any evidence that religious use of this drug is dangerous in the quantities and the settings used by UDV, the government had every opportunity to provide that evidence. There was in fact no evidence of the kinds of effects Bobby associates with LSD, in part because of the quantity of DMT naturally occurring in the leaves used to brew the tea is apparently very small, in part because the effects of the drug are responsive to setting, mood, and expectations, and religious use is not the same as party use. There were studies in Brazil on thousands of worshipers;rates of psychiatric incidents were not significantly different from rates in the general population. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax) From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED] Sent: Thu 2/23/2006 5:43 AM To: religionlaw@lists.ucla.edu Subject: Re: Breaking news in federal RFRA case In a message dated 2/23/2006 2:04:12 AM Eastern Standard Time, [EMAIL PROTECTED] writes: I don't know anything about the dangers of hoasca, If hoasca contains DMT, it is an extremely dangerous drug, potentially more powerful than LSD. The dissociation and hallucinations it causes cannot only be acutely terrifying but lingering effects might continue some hours after the trip is over.I shudder to think the effects it might have on children. The effects of a sip or two of wine isn't in the same ball park as the effects of psychotropic drugs. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware ___ 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.
RE: Breaking news in federal RFRA case
Not sure I understand, Marc. In O Centro, Roberts wrote that in Smith, we rejected the interpretation of the Free Exercise Clause announced in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and, in accord with earlier cases, see Smith, 494 U.S., at 879-880, 884-885, 110 S.Ct. 1595, held that the Constitution does not require judges to engage in a case-by-case assessment of the religious burdens imposed by facially constitutional laws. What's surprising about that statement? Roberts didn't say that Smith had overturned Sherbert -- in fact, Smith expressly declined to do so -- but only that in Smith, the Court rejected the FEC interpretation announced in Sherbert. Of course, Smith *did* reject Sherbert's compelling interest interpretation as a general test for the FEC, right? -- Original message -- From: Marc Stern [EMAIL PROTECTED] Did anybody else notice that the Chief Justice in Gonzales acknowledged that Smith overturned Sherbert, notwithstanding Justice Scalia's' claim in Smith that the court had never held that burdens on religious practice need compelling justification? Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, February 23, 2006 9:31 AM To: religionlaw@lists.ucla.edu Subject: RE: Breaking news in federal RFRA case The government spent a year preparing for the preliminary injunction hearing. The hearing itself lasted nine days. The judge spent a year digesting the evidence and writing the opinion. This was, in all but name, a full trial. If there any evidence that religious use of this drug is dangerous in the quantities and the settings used by UDV, the government had every opportunity to provide that evidence. There was in fact no evidence of the kinds of effects Bobby associates with LSD, in part because of the quantity of DMT naturally occurring in the leaves used to brew the tea is apparently very small, in part because the effects of the drug are responsive to setting, mood, and expectations, and religious use is not the same as party use. There were studies in Brazil on thousands of worshipers; rates of psychiatric incidents were not significantly different from rates in the general population. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax) From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED] Sent: Thu 2/23/2006 5:43 AM To: religionlaw@lists.ucla.edu Subject: Re: Breaking news in federal RFRA case In a message dated 2/23/2006 2:04:12 AM Eastern Standard Time, [EMAIL PROTECTED] writes: I don't know anything about the dangers of hoasca, If hoasca contains DMT, it is an extremely dangerous drug, potentially more powerful than LSD. The dissociation and hallucinations it causes cannot only be acutely terrifying but lingering effects might continue some hours after the trip is over. I shudder to think the effects it might have on children. The effects of a sip or two of wine isn't in the same ball park as the effects of psychotropic drugs. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware ---BeginMessage--- Did anybody else notice that the Chief Justice in Gonzales acknowledged that Smith overturned Sherbert, notwithstanding Justice Scalias claim in Smith that the court had never held that burdens on religious practice need compelling justification? Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, February 23, 2006 9:31 AM To: religionlaw@lists.ucla.edu Subject: RE: Breaking news in federal RFRA case The government spent a year preparing for the preliminary injunction hearing. The hearing itself lasted nine days. The judge spent a year digesting the evidence and writing the opinion. This was, in all but name, a full trial. If there any evidence that religious use of this drug is dangerous in the quantities and the settings used by UDV, the government had every opportunity to provide that evidence. There was in fact no evidence of the kinds of effects Bobby associates with LSD, in part because of the quantity of DMT naturally occurring in the leaves used to brew the tea is apparently very small, in part because the effects of the drug are responsive to setting, mood, and expectations, and religious use is not the same as party use. There were studies in Brazil on thousands of worshipers;rates of psychiatric incidents were not significantly different from rates in the general population. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax
Re: Breaking news in federal RFRA case
Point of clarification. What are "rates of psychiatric incidents"? Brazilian havemembers emailed me to tell me that the drugs are good for everyone, and especially adolescents. (Indeed, they go beyond and claim marijuana is also great for children.) What was the record in this supposed trial on giving drugs to children? Marci In a message dated 2/23/2006 4:51:45 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: There were studies in Brazil on thousands of worshipers;rates of psychiatric incidents were not significantly different from rates in the general population. ___ 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.
Re: Breaking news in federal RFRA case
Marci writes: "The Supreme Court was in no position to investigate whether this drug is different from peyote, or, more importantly from my point of view, whether the drug is routinely given to minors (as it is)." Why not? The case was briefed by some of the best lawyers in the government and argued by one of the best SCOTUS advocates in the business. DEA,the State Departmentand the Civil Division left no stone unturned in developing every argument they could imagine for why there was a compelling interest in denying the exemption here. If the risk to children from hoasca was more substantial than the risk to children from Native American use of peyote, surely that fact would have been prominent in the government's case, and the courts could have evaluated the evidence. But the goverment made only a passing reference (in its opening brief) to the fact that UDC administers hoasca to children. The government did not try to demonstrate that the UDV's practice with respect to minors causes harms greater than the use of peyote by children of tribal members -- a use that the federal government has left unregulated for decades. Nor did the government ask for any restrictions in the preliminary injunction limiting or regulating the use of the drug by children. The risk to children could have, and would have, been "taken into account" and "documented" if there wereevidence that distinguishes this case from the peyote exemption. But apparently there was no such evidence. DOJ's calculated decision not to place as much weight on this factor as Marci apparently would have done does not demonstrate anything about the courts' capacity to evaluate and defer to compelling interests that aresupported by evidence. Cf. Cutter. - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Tuesday, February 21, 2006 12:49 PM Subject: Re: Breaking news in federal RFRA case I am not going to belabor the point, Marty, but I strongly disagree with your interpretation of the application of standards of review. The strict scrutiny standard puts the courts in the business of second-guessing legislative judgment, normally where there is a lurking constitutional violation. RFRA strict scrutiny is not triggered by any lurking constitutional error, but rather bare second-guessing. Trying to normalize what RFRA demands -- imposition of a constitutional standard of review through legislation(which is only reflected in RLUIPA) is a mistake in my view. In this case in particular, the inadequacies of the courts are shown. The Supreme Court was in no position to investigate whether this drug is different from peyote, or, more importantly from my point of view, whether the drug is routinely given to minors (as it is). Had this specific exemption request been part of a legislative inquiry, the regular use by minors could have been taken into account, and, I presume, the compelling interest for denying its use documented. There was no place for such an inquiry in the Court'sappellate review. In any event, the Court is absolutely right that the federal government asked for it, and here they have it. Marci In a message dated 2/21/2006 12:29:30 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: I know we've been over this ground many times, but perhaps it's still worth clarifying: It's not a delegation of a "policy" decision -- it's asking the courts to apply a legal standard. For instance, in this case, it was Congress that decided that the sky would not fall with the peyote exemption, and the federal government that failed to explain why the harms in this case would be any worse or different than in the peyote case. This was basic analogic reasoning, applying a statutory standard --everyday stuff for the judiciary. Nor was it beyond the Court's ken to conclude -- correctly -- that the exemption would not be required if the treaty-based consequences would be severe, but that thegovernment had not demonstrated that the consequences of breaching the treaty would in fact be as draconian as the State Department alleged. ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, se
RE: Breaking news in federal RFRA case
I think that it is too early to tell one way or the other. Dont forget that he has a wily antagonist, if that is not too strong a word, in Justice Stevens. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Tuesday, February 21, 2006 11:24 AM To: religionlaw@lists.ucla.edu Subject: Re: Breaking news in federal RFRA case Can anything be read into the unanimous nature of the opinion and Roberts being its author...Is this some indication that Roberts is going to be a consensus builder on at least certain issues? Donald C. Clark, Jr. Counselor at Law Bannockburn Lake Office Plaza I 2333 Waukegan Road Suite 160 Bannockburn, Illinois 60015 (847) 236-0900 (telephone) (847) 236-0909 (facsimiles) ___ 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.
RE: Breaking news in federal RFRA case
The Congress and the President that enacted RFRA thought, rightly or wrongly, that there was a palpable, and not lurking, constitutional error. On that point I agree with that Congress and that President. But even if there were an error on the constitutional point, it does not matter, unless your position is that Congress cannot, in the exercise of policy-based discretion, decide that the Courts have to do the job that Roberts wry comments referred to. In any event, the Court ruled 8-0 that Congress could. Your basic objection, which you have repeated many times, is, if I have it right, that a number of police power health, safety and regulatory concerns properly, if not necessasrily, trump the autonomy claims of religious individuals and persons. That may or may not be right, but surely doesnt Congress get to decide whether this is true or not either as a general proposition or in specific cases? After all Congress is the source of the relevant regulatory regimes in the first place. I dont know how important it is that minors drink the tea. Why is drinking it per se bad for minors, or for anybody else? It is only bad because Congress said it was, at least as a general proposition. However, Congress can properly decide to allow for a little play in the joints, cant it? You seem to want to hem in Congress policy discretion on matters of this sort, and there is no Constitutional basis for doing so. If Congress passes bad but constitutional laws, then the answer is to elect a different Congress. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Tuesday, February 21, 2006 12:49 PM To: religionlaw@lists.ucla.edu Subject: Re: Breaking news in federal RFRA case I am not going to belabor the point, Marty, but I strongly disagree with your interpretation of the application of standards of review. The strict scrutiny standard puts the courts in the business of second-guessing legislative judgment, normally where there is a lurking constitutional violation. RFRA strict scrutiny is not triggered by any lurking constitutional error, but rather bare second-guessing. Trying to normalize what RFRA demands -- imposition of a constitutional standard of review through legislation(which is only reflected in RLUIPA) is a mistake in my view. In this case in particular, the inadequacies of the courts are shown. The Supreme Court was in no position to investigate whether this drug is different from peyote, or, more importantly from my point of view, whether the drug is routinely given to minors (as it is). Had this specific exemption request been part of a legislative inquiry, the regular use by minors could have been taken into account, and, I presume, the compelling interest for denying its use documented. There was no place for such an inquiry in the Court'sappellate review. In any event, the Court is absolutely right that the federal government asked for it, and here they have it. Marci In a message dated 2/21/2006 12:29:30 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: I know we've been over this ground many times, but perhaps it's still worth clarifying: It's not a delegation of a policy decision -- it's asking the courts to apply a legal standard. For instance, in this case, it was Congress that decided that the sky would not fall with the peyote exemption, and the federal government that failed to explain why the harms in this case would be any worse or different than in the peyote case. This was basic analogic reasoning, applying a statutory standard --everyday stuff for the judiciary. Nor was it beyond the Court's ken to conclude -- correctly -- that the exemption would not be required if the treaty-based consequences would be severe, but that thegovernment had not demonstrated that the consequences of breaching the treaty would in fact be as draconian as the State Department alleged. ___ 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.
Re: Breaking news in federal RFRA case
I hope the paragraph belowwas in jest. Schedule Idrugs are drugs that are considered to have no beneficial use and to be dangerous. If children are drinking the DMTin the tea, they are the victims of child abuse. I cannot believe thatanyone on this listis willing to give a group a pass in abusing children just because it is religious.It is one thing for adults to choose to take such drugs, but quite another for that group to provide the drugs to children. With respect to RFRA, it's error lies in its blind accommodation. It is a blind handout to religion. As I argue in God vs the Gavel, I have no problem with legislative accommodation, and in fact in many circumstances support it.But to be legitimate,it must be passed pursuant to consideration of the public good (i.e., Congress fulfilled its constitutionally appointed duty to make policy choices) and not be merely, as RFRA was, a special interest gift. I may disagree with the public policy balance, which is a wholly different matter. Under RFRA, Congress shuffles those hard policy choices over to the courts. The defenses of RFRA as responsible congressional enactment are formalistic in the extreme. Marci In a message dated 2/22/2006 6:19:26 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: I don’t know how important it is that minors drink the tea. Why is drinking it per se bad for minors, or for anybody else? It is only bad because Congress said it was, at least as a general proposition. However, Congress can properly decide to allow for a little play in the joints, can’t it? You seem to want to hem in Congress’ policy discretion on matters of this sort, and there is no Constitutional basis for doing so. If Congress passes bad – but constitutional – laws, then the answer is to elect a different Congress. ___ 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.
RE: Breaking news in federal RFRA case
I don't know anything about the dangers of hoasca, but I wouldn't infer much about such dangers simply from the fact that Congress has outlawed it. Indiana, unless, I'm mistaken, bars anyone from furnishing alcoholic beverages to minors, see Ind. Code 7.1-5-7-8; but I wouldn't lightly condemn a parent who gave a child a sip of wine -- whether sacramental or otherwise -- of child abuse. Nor would I condemn the parent even if the parent had done this during Prohibition. That Congress considers Schedule I drugs to be dangerous doesn't by itself tell us that much about how dangerous they are (especially when taken in moderation), or even how dangerous they are when minors drink them. Returning specifically to RFRA, that hoasca is a schedule I drug isn't, it seems to me, conclusive of how dangerous it is when consumed in a religious ceremony, even when it's consumed by a minor. Eugene -Original Message- From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED] Sent: Wed 2/22/2006 7:57 PM To: religionlaw@lists.ucla.edu Subject: Re: Breaking news in federal RFRA case I hope the paragraph below was in jest. Schedule I drugs are drugs that are considered to have no beneficial use and to be dangerous. If children are drinking the DMT in the tea, they are the victims of child abuse. I cannot believe that anyone on this list is willing to give a group a pass in abusing children just because it is religious. It is one thing for adults to choose to take such drugs, but quite another for that group to provide the drugs to children. With respect to RFRA, it's error lies in its blind accommodation. It is a blind handout to religion. As I argue in God vs the Gavel, I have no problem with legislative accommodation, and in fact in many circumstances support it. But to be legitimate, it must be passed pursuant to consideration of the public good (i.e., Congress fulfilled its constitutionally appointed duty to make policy choices) and not be merely, as RFRA was, a special interest gift. I may disagree with the public policy balance, which is a wholly different matter. Under RFRA, Congress shuffles those hard policy choices over to the courts. The defenses of RFRA as responsible congressional enactment are formalistic in the extreme. Marci In a message dated 2/22/2006 6:19:26 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: I don't know how important it is that minors drink the tea. Why is drinking it per se bad for minors, or for anybody else? It is only bad because Congress said it was, at least as a general proposition. However, Congress can properly decide to allow for a little play in the joints, can't it? You seem to want to hem in Congress' policy discretion on matters of this sort, and there is no Constitutional basis for doing so. If Congress passes bad - but constitutional - laws, then the answer is to elect a different Congress. ___ 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.
Re: Breaking news in federal RFRA case
Here's the opinion: http://scotus.ap.org/scotus/04-1084p.zo.pdf It's rather remarkable -- and, in my humble opinion, almost completely correct in all its particulars, especially (i) explaining that the peyote exemption fairly forecloses the government's theories about potential harms here; and (ii) requiring the government to demonstrate, not simply assert, thatour violation of the treaty,whichRFRA requires, will lead to devastating international consequences. The one thing Roberts doesn't quite pull off is explaining why Hernandez is not a response to the peyote argument. (In Hernandez, the Court held that the existence of a patchwork of tax exemptions did not undermine the government's need to deny a religious exemption.) P.S. Although I'm sure Marci will disagree, I read the opinion as basically putting the final nail in the argument that RFRA/RLUIPA are unconstitutional. - Original Message - From: "Mark Tushnet" [EMAIL PROTECTED] To: "Law Religion issues for Law" RELIGIONLAW@listserv.ucla.edu; "Law Religion issues for Law Academics" religionlaw@lists.ucla.edu Sent: Tuesday, February 21, 2006 10:12 AM Subject: Breaking news in federal RFRA case "the Court ruled unanimously that the government may not ban a religious from using a herbal tea that contains a substance that the government considers to be harmful. The Chief Justice wrote the opinion. Only new Justice Samuel A. Alito, Jr., did not take part." -- from SCOTUS Blog -- Mark Tushnet Georgetown University Law Center 600 New Jersey Ave. NW Washington, DC 20001 202-662-9106 (voice) 202-662-9497 (fax) ___ 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. ___ 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.
Re: Breaking news in federal RFRA case
Can anything be read into the unanimous nature of the opinion and Roberts being its author...Is this some indication that Roberts is going to be a consensus builder on at least certain issues? Donald C. Clark, Jr.Counselor at LawBannockburn Lake Office Plaza I2333 Waukegan RoadSuite 160Bannockburn, Illinois 60015(847) 236-0900 (telephone)(847) 236-0909 (facsimiles) ___ 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.
Re: Breaking news in federal RFRA case
Does this decision affect Employment Division Vs. Smith? The quote below makes it sound like it is revisiting the same issue. One can only hope! Brad Mark Tushnet wrote on 02/21/2006 09:12:53 AM: the Court ruled unanimously that the government may not ban a religious from using a herbal tea that contains a substance that the government considers to be harmful. The Chief Justice wrote the opinion. Only new Justice Samuel A. Alito, Jr., did not take part. -- from SCOTUS Blog ___ 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.
Re: Breaking news in federal RFRA case
On the contrary: The Court comes right out and says to the government: "See, we told you this would happen -- that's why we decided Smith the way we did. But you had to go ahead and pass RFRA anyway, so here's what you get . . . " Well, this is how the Chief puts it, but I think the "You made your bed . . . " subtext is manifest: We have no cause to pretend that the task assigned by Congress to the courts under RFRA is an easy one. Indeed, the very sort of difficulties highlighted by the Government here were cited by this Court in deciding that the approach later mandated by Congress under RFRA was not required as a matter of constitutional law under the Free Exercise Clause. See Smith, 494 U. S., at 885,890. But Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue. - Original Message - From: Brad M Pardee To: Law Religion issues for Law Academics Sent: Tuesday, February 21, 2006 11:25 AM Subject: Re: Breaking news in federal RFRA case Does this decision affect Employment Division Vs. Smith? The quote below makes it sound like it is revisiting the same issue. One can only hope! Brad Mark Tushnet wrote on 02/21/2006 09:12:53 AM: "the Court ruled unanimously that the government may not ban a religious from using a herbal tea that contains a substance that the government considers to be harmful. The Chief Justice wrote the opinion. Only new Justice Samuel A. Alito, Jr., did not take part." -- from SCOTUS Blog ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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. ___ 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.
RE: Breaking news in federal RFRA case
This is a RFRA case, not a free exercise case, so it does not affect Smith. But it does show that the Court is willing to take RFRA seriously and enforce it according to its terms. It may also have a persuasive effect on state courts interpreting state RFRAs. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad M PardeeSent: Tuesday, February 21, 2006 10:26 AMTo: Law Religion issues for Law AcademicsSubject: Re: Breaking news in federal RFRA case Does this decision affect Employment Division Vs. Smith? The quote below makes it sound like it is revisiting the same issue. One can only hope! Brad Mark Tushnet wrote on 02/21/2006 09:12:53 AM: "the Court ruled unanimously that the government may not ban a religious from using a herbal tea that contains a substance that the government considers to be harmful. The Chief Justice wrote the opinion. Only new Justice Samuel A. Alito, Jr., did not take part." -- from SCOTUS Blog ___ 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.
RE: Breaking news in federal RFRA case
In a real sense this is *not* a case holding that "the government may not ban" a religious practice (to use the language quoted fromthe very valuable SCOTUS blog). Instead, it is a case in which the government has, by enacting a statute (RFRA), *chosen not to ban*a religious practice. RFRAamends the otherwise applicable statute that would otherwise ban the practice. We may argue about what RFRA means, about how to apply it to different factual settings, andabout whether it is constitutional (though that seems to be decided now). But whatever RFRA means, Congress chose to enact it and thus chose not to ban those practices that are protected under RFRA. Mark S. Scarberry Pepperdine University School of Law From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas LaycockSent: Tuesday, February 21, 2006 8:57 AMTo: Law Religion issues for Law AcademicsSubject: RE: Breaking news in federal RFRA case This is a RFRA case, not a free exercise case, so it does not affect Smith. But it does show that the Court is willing to take RFRA seriously and enforce it according to its terms. It may also have a persuasive effect on state courts interpreting state RFRAs. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad M PardeeSent: Tuesday, February 21, 2006 10:26 AMTo: Law Religion issues for Law AcademicsSubject: Re: Breaking news in federal RFRA case Does this decision affect Employment Division Vs. Smith? The quote below makes it sound like it is revisiting the same issue. One can only hope! Brad Mark Tushnet wrote on 02/21/2006 09:12:53 AM: "the Court ruled unanimously that the government may not ban a religious from using a herbal tea that contains a substance that the government considers to be harmful. The Chief Justice wrote the opinion. Only new Justice Samuel A. Alito, Jr., did not take part." -- from SCOTUS Blog ___ 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.
Re: Breaking news in federal RFRA case
With all due respect, Mark, Congress did not "choose" any policy with RFRA, because it sought only to overturn Smith and never considered the vast, vast majority of instances where RFRA would apply. This is delegation to the courts ---which are not competent to make such determinations -- to make policy decisions. That is what is fundamentally wrong with RFRA. Marci In a message dated 2/21/2006 12:15:55 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: But whatever RFRA means, Congress chose to enact it and thus chose not to ban those practices that are protected under RFRA. ___ 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.
RE: Breaking news in federal RFRA case
No, Congress did choose a policy. It chose not to regulate religion except where such regulation is clearly necessary. It instructed courts to apply that policy to individual cases, which are far too vast in number for Congress to resolve one by one. Also, perhaps less admirably, some of them are politically difficult for Congress to resolve one by one. But there is nothing unusual about that. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]Sent: Tuesday, February 21, 2006 11:19 AMTo: religionlaw@lists.ucla.eduSubject: Re: Breaking news in federal RFRA case With all due respect, Mark, Congress did not "choose" any policy with RFRA, because it sought only to overturn Smith and never considered the vast, vast majority of instances where RFRA would apply. This is delegation to the courts ---which are not competent to make such determinations -- to make policy decisions. That is what is fundamentally wrong with RFRA. Marci In a message dated 2/21/2006 12:15:55 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: But whatever RFRA means, Congress chose to enact it and thus chose not to ban those practices that are protected under RFRA. ___ 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.
Re: Breaking news in federal RFRA case
I know we've been over this ground many times, but perhaps it's still worth clarifying: It's not a delegation of a "policy" decision -- it's asking the courts to apply a legal standard. For instance, in this case, it was Congress that decided that the sky would not fall with the peyote exemption, and the federal government that failed to explain why the harms in this case would be any worse or different than in the peyote case. This was basic analogic reasoning, applying a statutory standard --everyday stuff for the judiciary. Nor was it beyond the Court's ken to conclude -- correctly -- that the exemption would not be required if the treaty-based consequences would be severe, but that thegovernment had not demonstrated that the consequences of breaching the treaty would in fact be as draconian as the State Department alleged. - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Tuesday, February 21, 2006 12:19 PM Subject: Re: Breaking news in federal RFRA case With all due respect, Mark, Congress did not "choose" any policy with RFRA, because it sought only to overturn Smith and never considered the vast, vast majority of instances where RFRA would apply. This is delegation to the courts ---which are not competent to make such determinations -- to make policy decisions. That is what is fundamentally wrong with RFRA. Marci In a message dated 2/21/2006 12:15:55 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: But whatever RFRA means, Congress chose to enact it and thus chose not to ban those practices that are protected under RFRA. ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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. ___ 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.
RE: Breaking news in federal RFRA case
And if the federal government doesn't like it, they can just amend RFRA to make clear that drug laws aren't covered. That, I think, helps makes the concerns about the Court's institutional competence less significant. The Congress tells the Court to make the first-cut decision in these cases. The Court makes this, as best it can (and while it may have less institutional competence to decide drug policy questions generally, it at least has the advantage of the record related to *religious objections* specifically, and religious objections touching on this particular drug, something that Congress didn't squarely consider at first). Then if Congress thinks the results are bad enough, it can correct it. Not much different, as I've argued before, from the common-law-making process. I'm not sure that courts are really that remarkably competent at crafting contract law, tort law, property law, and the like; they're not awful but I'm sure they often get things wrong, and lack the ability to take a big-picture view in some situations. But so long as their decisions are subject to legislative review, this institutional competence concern is less severe than if they were making the final decision (as under Sherbert and Yoder). The RFRA regime really is logically and (potentially) functionally different from the Sherbert/Yoder regime. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Tuesday, February 21, 2006 9:49 AM To: religionlaw@lists.ucla.edu Subject: Re: Breaking news in federal RFRA case I am not going to belabor the point, Marty, but I strongly disagree with your interpretation of the application of standards of review. The strict scrutiny standard puts the courts in the business of second-guessing legislative judgment, normally where there is a lurking constitutional violation. RFRA strict scrutiny is not triggered by any lurking constitutional error, but rather bare second-guessing. Trying to normalize what RFRA demands -- imposition of a constitutional standard of review through legislation (which is only reflected in RLUIPA) is a mistake in my view. In this case in particular, the inadequacies of the courts are shown. The Supreme Court was in no position to investigate whether this drug is different from peyote, or, more importantly from my point of view, whether the drug is routinely given to minors (as it is). Had this specific exemption request been part of a legislative inquiry, the regular use by minors could have been taken into account, and, I presume, the compelling interest for denying its use documented. There was no place for such an inquiry in the Court's appellate review. In any event, the Court is absolutely right that the federal government asked for it, and here they have it. Marci In a message dated 2/21/2006 12:29:30 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: I know we've been over this ground many times, but perhaps it's still worth clarifying: It's not a delegation of a policy decision -- it's asking the courts to apply a legal standard. For instance, in this case, it was Congress that decided that the sky would not fall with the peyote exemption, and the federal government that failed to explain why the harms in this case would be any worse or different than in the peyote case. This was basic analogic reasoning, applying a statutory standard -- everyday stuff for the judiciary. Nor was it beyond the Court's ken to conclude -- correctly -- that the exemption would not be required if the treaty-based consequences would be severe, but that the government had not demonstrated that the consequences of breaching the treaty would in fact be as draconian as the State Department alleged. ___ 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.
