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
A side note on some of the discussion --As someone who was clerking at the
Court the Term that Smith was decided, I find it jarring to hear law professors
talk about Smith as though only one Justice either wrote it or voted for it.
That is not how cases are decided or majorities reached
Of course you are correct, Marci, but still one must concede that certain
rhetoric is clearly Scalian and the author of an opinion matters. In this
instance, one has the addition of the opinions in Hiahleah to make the
Smith opinion not as much a collective work as one might otherwise consider
it
Well, you know what comes next-Lukumi, if Hialeah says you have to have
good cause to kill an animal?
I understand Eugene's line-drawing concerns and I share them. I agree
that Newark is somewhat unprincipled and that it would be hard to get the
Supreme Court to accept its logic. But I go
Thanks, Eugene, for the thoughtful email. A couple short responses before
I run out the door.
First, not all secular killings were permitted in Lukumi. My
understanding is that they enforced the ban on cockfighting and the ban on
training greyhounds with rabbits. (There was actually an
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
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
No, I think it's mistaken, and likewise with the more recent
steel wheels case, Mitchell County v. Zimmerman (Iowa Feb. 3, 2012),
http://scholar.google.com/scholar_case?case=9939422895334605795 . The
conclusion that a public employer's provision of medical exemptions should
I agree with Eugene?! Wow! :)
Law of general applicability was again Scalia shooting from the hip, as
he makes quite clear in his concurrence in Hialeah. It could mean, in
theory, any number of things including:
1. Any exception for any reason makes it not general (self defense for
murder is
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
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,
I agree with you that general applicability may end up slipping us back
toward a motive inquiry. The cockfighting and the greyhounds I remember
from Hialeahs briefbut Im sorry about misleading on the greyhound
point.
From: religionlaw-boun...@lists.ucla.edu
I'm with Jim in what I see as his skepticism as to the
suggestion that exceptions from a law make it not of general applicability
for Free Exercise Clause purposes. (I realize that some post-Smith cases take
this view, but I think they are mistaken.) A vast range of laws,
13 matches
Mail list logo
