Eugene, you took the route I didn't expect, which is to say that the suppression of the mass by a no-alcohol law would not be constitutionally troubling under our most common intuitions about religious freedom. I strongly suspect that most courts following the Sherbert/Yoder approach would disagree and would mandate an exemption. Indeed, I think that courts following Sherbert/Yoder would be more likely to mandate alcohol exemptions than peyote exemptions -- which themselves have been quite common under the Sherbert/Yoder approach (see, e.g., three USSCT dissenting justices in Smith finding no compelling interest, versus O'Connor concurring alone finding a compelling interest; see also Smith v. Employment Division, 763 P.2d 146 (Or. 1988); Whitehorn v. State, 561 P.2d 539 (Okla. Crim. App. 1977); State v. Whittingham, 504 P.2d 950 (Ariz. App. 1973); People v. Woody, 394 P.2d 813 (Cal. 1964); Peyote Way Church of God v. Smith, 742 F.2d 193 (5th Cir. 1984)). It is true that alcohol causes more deaths and injuries than peyote, but alcohol is also far more widespread and permitted in many jurisdictions, and for most people small amounts of wine are harmless (or even of some medicinal value). Moreover, and importantly, some of the peyote-exemption cases noted that there were statutory exemptions for sacramental peyote in other jurisdictions, and that this undermined the assertion of a compelling interest under Sherbert/Yoder; indeed, exemptions or an absence of regulation have regularly been cited in free exercise cases generally as evidence that a state's interest is not compelling. This argument would be many, many orders of magnitude stronger in the case of an alcohol ban in a dry county (and that was my hypothetical, not National Prohibition). A dry county would be almost alone among thousands of governmental units in prohibiting all public serving of alcohol including in sacramental settings. The Catholic church would convincingly say, "Look at the hundreds or thousands of jurisdictions where sacramental wine is permitted either by exemption or because there is no ban in the first place; and there's no evidence that the sacramental use has increased deaths or injuries in any significant amount. In that light, how can you, dry county, claim that prohibiting our use is a compelling necessity?" I'm quite confident that most courts applying Sherbert/Yoder to a dry county would mandate the wine exemption, and even more readily than the peyote exemption. But I too would be interested in what others on the list think. Tom Berg
_____ From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Tue 3/15/2005 4:32 PM To: Law & Religion issues for Law Academics Subject: RE: Free Exercise, Free Speech, and harm to others I support sacramental wine exemptions as a policy matter, but I don't think they'd be constitutionally mandated even under strict scrutiny. Alcohol contributes to the deaths of 100,000 people a year, including about 15,000 innocent bystanders. I'm not an expert on Prohibition history, but my guess is that a sacramental wine exemption -- unless it's accompanied with some very intrusive policing -- would allow a considerable amount of leakage into the black market, and would more broadly interfere with enforcement. (A minister who gets a shipment of sacramental wine for mass can easily get drunk, and then drive drunk; people who get wine for Passover seders can do the same; and it's much easier to smuggle alcohol if you can claim "Oh, officer, this batch is for sacramental use -- here are some papers that say so.") In practice, an alcohol prohibition is likely to be so underenforced that this leakage doesn't matter much -- but I quite doubt that a court applying the Sherbert/Yoder-era regime would find as a matter of constitutional fact that the sacramental exemption is likely to be harmless enough that the government won't satisfy strict scrutiny. Instead, a court would likely reason the way O'Connor did in Smith, especially since alcohol seems to be much more deadly than peyote. Am I mistaken? Do people think that even if Sherbert/Yoder-era strict scrutiny had been applied to an alcohol ban, an exemption would have been or should have been carved out, despite how deadly alcohol can be? More broadly, I do ultimately support the Smith regime, which keeps the courts out of the business of deciding as a *constitutional* matter which harms to others are "real harms" and which aren't. As I argue in my Common-Law Model paper, that business was one of the problems of the Lochner era cases, where some of the decisions (see, e.g., Adair) were indeed based on a court's judgment that discrimination isn't a "real harm" that the legislature can try to avoid. At the same time, for reasons I explain there, I think the state RFRA model, where courts are given the power to carve out exemptions in the first instance, subject to legislative override, is better than either pure Smith or pure Sherbert. In any event, I realize the Smith regime reaches some unappealing results -- but I don't think that as to sacramental wines, Sherbert or Yoder would likely reach any different results. -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Berg, Thomas C. Sent: Tuesday, March 15, 2005 1:34 PM To: Law & Religion issues for Law Academics Subject: RE: Free Exercise, Free Speech, and harm to others But Eugene's position is also unattractive, I would suggest, because it asserts that "we should be free to practice our religion as long as it does not harm others, and the government determines what is a harm to others, without any constitutional review of that determination by the courts." I think that when you add that second assertion, his reading of the Free Exercise Clause becomes unattractive, and in many cases just as out of line with common intuitions about the scope of religious freedom as protecting the religious conduct arguably would be in his hypotheticals. Under Eugene's position, if the county board decides that this shall be a dry county -- say, no serving of alcohol to any group of persons -- then the serving of wine at a Catholic mass or the Jewish seder is barred with no constitutional objection. Under Eugene's view, the county board can say "all citizens of this county have a 'private right' not to have anyone in the county drinking alcohol," or it can say "even the smallest serving of alcohol in a communion or seder cup threatens the public peace" or "harms others." This is because under Eugene's view, the legislature can define anything as a "private right" or a "harm" or a "threat to public peace." (Even if the court can first declare the mass or seder protected under Eugene's "common law religious freedom" approach, his position, as I understand it, is that if the county board comes back and explicitly declares the religious conduct illegal, the courts then may not question that.) The central worship service of Catholicism and other faiths can be barred or drastically altered by the coercive force of law even though the activity goes on regularly elsewhere across the nation without significant real-world harm. Perhaps Eugene would respond, "This seems a perfectly attractive implication of religious liberty to me." But I doubt he'd say that, and if he did, I think he would be out of line with most common intuitions about the scope of religious freedom. Or he might say, "Yes, this is an unattractive result -- it would be great to protect the mass or other serving of small amounts of sacramental alcohol -- but we have to accept this unattractive result because it follows from the best theory of religious freedom." But in that case, I would make two responses: (1) his theory no longer can lay claim to be obviously the one whose applications accord with common intuitions; and (2) his theory is a good deal more about institutional competence to measure things like "private rights" and "public peace" than it is about the normative principle of religious freedom. I don't think it's obvious that these concepts are undefinable by courts and therefore we have to defer to whatever the political branches say. The example of Jefferson's "neither breaks my leg nor picks my pocket" is revealing because it invokes rights in one's physical integrity and one's property that are individualized (rather than diffuse social effects) and are part of the basic common-law framework that the Framers would have assumed. I don't think it follows from the Jefferson quote that the legislature can define whatever it wants as a "private right" or as an "injury to another," without any further questions. Tom Berg, University of St. Thomas (Minnesota) messages to others.
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