Doug, The Tenth Circuit appears to
distinguish between categorical exemptions, which undermine "general
applicability" for Lukumi purposes, and a system of discretionary
exemptions, which triggers the Sherbert exception from
Smith. It's not clear why such a distinction makes any doctrinal
difference -- the state would have to satisfy strict scrutiny in both
cases.
----- Original Message -----
From: "Douglas Laycock" <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics"
<[EMAIL PROTECTED]>;
<[EMAIL PROTECTED]>
Sent: Wednesday, February 04, 2004 5:41
PM
Subject: Re: Re: Axson-Flynn
> categorical exception is a highly efficient way of discriminating in favor
> of legitimate secular interests and ignoring religious interests. An
> entity that grants secular exceptions wholesale should have at least as
> much obligation to accommodate religious interests as one that grants
> secular exceptions retail. Lukumi relied heavily on categorical exceptions
> that exempted large defined classes of secular reasons for killing
> animals. The Third Circuit's opinion in Fraternal Order of Police v. City
> of Newark relies on a categorical exception for medical reasons not to shave.
>
> No one argued secular exceptions in Smith; that wasn't the law
> yet. But the medical exception in the drug laws does not apply to peyote,
> which has no recognized medical uses. And if a medical exception for say,
> morphine, does not justify a recreational exception for morphine, it is
> because the government's interest in recreational use of morphine is
> compellingly different from its interest in medical use of morphine. It is
> not because the rule is generally applicable.
>
> At the oral argument in Lukumi, Scalia and I had this very
> argument about an exception for shooting a bear in self defense.
>
> At 03:29 PM 2/4/2004 -0700, Denversam samuelv wrote:
> >It also has a good discussion on the limits of the "individualized
> >exceptions" doctrine. If there is a spelled-out, objectively determined
> >exception, that doesn't involve the case-by-case inquiry involved in
> >"individualized exceptions." After all, the controlled substances act at
> >issue in Smith itself had an exception for prescribed medication.
> >
> >
> >Sam Ventola
> >Denver, Colorado
> >
> >Douglas Laycock
>
> University of Texas Law School
> 727 E. Dean Keeton St.
> Austin, TX 78705
> 512-232-1341 (voice)
> 512-471-6988 (fax)
> [EMAIL PROTECTED]
>
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