Setting aside Smith's exception for Sherbert, and setting aside the argument that South Carolina law's protection of Sunday observers discriminated against Saturday observers, I would agree with the dissent in Sherbert. That unemployment compensation law has a "good cause" exemption, under which some secular causes are treated as sufficient but many as insufficient, doesn't mean that religious causes should be treated as well as the favored secular causes.
By analogy, as I mentioned, murder law has an exception for "adequate provocation" (which reduces the charge to manslaughter). Copyright law has an exception for "fair use." The duty to testify has an exemption for those privileges that courts create in light of experience and reason, as well as the Rule 403 free-form admissibility balancing. Title VII has an exception for "bona fide occupational qualifications." In many states, many criminal laws have a free-form "lesser evil" defense. Trespass law has a "private necessity" defense. Nuisance law in many jurisdictions involves pretty free-form balancing, as does negligence law. It doesn't follow, I think, that claims for religious exemptions - entitlement to a manslaughter defense when the provocation is blasphemy, entitlement to use others' copyrighted works for any religious reasons, the right to refuse to testify when one thinks testimony would be religiously wrong, the right not to hire women when one's religion so calls, the right to escape criminal liability or trespass tort liability because of "religious necessity," the right to interfere with others' enjoyment of their property when one has religious justification, or the right to have one's actions that injure another's property be declared "reasonable" because of one's religious motivations - should be treated as favorably as the most favorably treated secular motivations. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund Sent: Wednesday, February 15, 2012 11:55 AM To: 'Law & Religion issues for Law Academics' Subject: RE: Laws with exceptions as triggering strict scrutiny -- and as failing strict scrutiny because of their underinclusiveness? Similar question: Eugene, how would you today decide Sherbert v. Verner, with its "good cause" requirement? From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Wednesday, February 15, 2012 2:32 PM To: Law & Religion issues for Law Academics Subject: RE: Laws with exceptions as triggering strict scrutiny -- and as failing strict scrutiny because of their underinclusiveness? Eugene, I will try to respond to your hypos later today, but here is a non-hypothetical question: Do you think Fraternal Order of Police v. Newark was correctly decided? Best, Mark From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, February 15, 2012 9:44 AM To: Law & Religion issues for Law Academics Subject: RE: Laws with exceptions as triggering strict scrutiny -- and as failing strict scrutiny because of their underinclusiveness? Mark: A few hypotheticals: (1) Say that a state provides that adequate provocation makes killing manslaughter rather than murder, and that a particular set of behaviors - having sex with the defendant's spouse, having just beaten a defendant (but in a situation where the peril is over and no self-defense is allowed), and some other things - qualify as adequate provocation. And say that this defense is indeed used in dozens of cases a year. Someone kills someone for what he perceives is blasphemy, and argues that his religious sense of provocation should be treated the same as the provocation in the adultery, assault, etc. examples, so that he would be guilty only of manslaughter rather than murder. He argues that this presumptively entitles him to an exemption, and that it indeed the presumption can't be rebutted under strict scrutiny because murder law is underinclusive. (2) Someone feels a religious obligation not to testify against his children or parents, or against coreligionists, or in other contexts. He points to all the privileges recognized as defenses to the duty to testify, and argues that these exceptions presumptively entitle him to an exemption, and that indeed the presumption can't be rebutted under strict scrutiny because the duty to testify is underinclusive. (3) Someone feels a religious obligation not to hire women to work together with men, or not to hire women with small children at home. He points to the BFOQ exemption and to the exemption for small employers, both of which would exclude many more employees from Title VII's protection than would his proposed exemption. He argues that these exceptions presumptively entitle him to an exemption, and that indeed the presumption can't be rebutted under strict scrutiny because antidiscrimination law is underinclusive. (4) Someone feels a religious obligation to spread the word of God for free; that word happens to be in a book whose copyright is owned by others. His claim isn't just to a right to do this in church, but to a right to do this everywhere. He points to the many exceptions from copyright law, from 17 USC 107 to 17 USC 122 (each of the sixteen sections contains at least one exemption). He argues that these exceptions presumptively entitle him to an exemption, and that indeed the presumption can't be rebutted under strict scrutiny because copyright law is underinclusive. Is it really the case that all these laws should be subject to strict scrutiny - especially given that the underinclusiveness prong of strict scrutiny might well make the laws invalid under such a test? My thinking is that the answer is no. Most laws involve the reconciliation of competing interests, including competing private interests that the government is trying to protect; and I don't think that the fact that someone has a religious motivation to do something constitutionally entitles him to the best treatment available to others. That my rights as a copyright owner are limited in some ways to serve rival concerns doesn't mean that there's a constitutional obligation on the government's part to limit them further in order to serve some people's view of what God demands - a view that is not my view, and to which my rights should not, I think, bend. But whatever one might think of this as a matter of first principles, it seems to me that this "most favored nations" approach likely yields results, in cases such as the ones I described above, that are rightly seen as improper. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu]<mailto:[mailto:religionlaw-boun...@lists.ucla.edu]> On Behalf Of Scarberry, Mark Sent: Wednesday, February 15, 2012 9:16 AM To: Law & Religion issues for Law Academics Subject: RE: Laws with exceptions as triggering strict scrutiny -- and as failing strict scrutiny because of their underinclusiveness? Paul rightly asks us to consider more than just formalism. History is important, and I think the concern about freedom of the church goes back at least to Pope Gregory (?) in the 11th (?) Century. Cf. Antigone. I've suggested elsewhere that a historical approach to what constitutes free exercise might help us understand it. But here is some more somewhat formalistic analysis: I have always understood the general applicability test to involve a kind of most favored nations concern. Are other exceptions allowed to undercut the basis purpose of a law to roughly the same degree that a religious exception would undercut it? If so, the law is not of general applicability. For example, if a prohibition law permitted sale and consumption of beer it would need to permit sale and consumption of wine for communion or for Shabbat or Passover dinners. If there is a copyright law exception for fair use of music in schools, then an exception must be made for church services. Justice (then Judge) Alito made this point in Fraternal Order of Police v. City of Newark (3d Cir. 1989): "Because the Department makes exemptions from its policy for secular reasons and has not offered any substantial justification for refusing to provide similar treatment for officers who are required to wear beards for religious reasons, we conclude that the Department's policy violates the First Amendment." I think that this is a kind of mid-level under-inclusiveness requirement, but one that is used not in applying a level of scrutiny but in deciding what level of scrutiny to apply. From Lukumi Babalu Aye v. City of Hialeah: "The ordinances are underinclusive for those ends. They fail to prohibit nonreligious conduct that endangers these interests in a similar or greater degree than Santeria sacrifice does. The underinclusion is substantial, not inconsequential." Thus the prohibition on animal sacrifice was not generally applicable. I realize that there is other language in the case that focuses on the targeting of religious conduct, on the point that practically the only conduct prohibited was religious. Yet I think the quoted principle captures the basic meaning of "generally applicable." Of course all of these concepts are somewhat manipulable. What is the purpose of laws against murder? To prevent killing? To prevent unjustified killing? To protect the innocent? Under some of these formulations a defense of self-defense could make a murder law not generally applicable in a formalistic sense. But of course our history will prevent murder laws from being invalidated with respect to human sacrifice, even of a volunteer. You might say that background legal principles frame the analysis. We value innocent life. Thus historically we have permitted private self-defense against attackers, but we do not otherwise allow the private intentional killing of a human being except where there is not enough time to get the govt involved. If unenumerated but firmly historically rooted rights (e.g, some parental rights) are constitutionally protected under Due Process, as I think even Justice Scalia accepts, then it makes some sense to consult history as we try to understand a right specifically enumerated in the First Amendment. Almost all legal concepts are manipulable, but that does not mean they are useless. And even laws not of general applicability will be enforceable against religious conduct if the govt interest is strong enough, which gives us an out from a too-formalistic application of the requirement. I suppose a historical approach might have led to a different result in Lukumi. That may cut against it. Animal sacrifice has been seen for quite a long time to be foreign (literally) to the exercise of religion in the US. (A cousin told me of an animal sacrifice done next to her condo building by some middle-eastern immigrants to cleanse the building of the effects of a suicide. The immigrants were neither Jewish nor mainstream Muslim, as I understand it.) Yet we do eat animals in celebrations that have religious or cultural significance (e.g., Thanksgiving turkey). We even grant mercy to such animals at times. Consider presidential pardons of Thanksgiving turkeys. And there is a need to adjust historical analysis to protect religions that are new to our society. Perhaps the general applicability requirement would help us do the needed historical adjustment. Best, Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law
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