So you disagree with the proposition that Wisconsin v. Yoder is a more
accurate description of the RLUIPA/RFRA standard? Seems to me you just
proved it below, given the caveats. Sherbert is simply not a
straightforward strict scrutiny decision, at least when compared to the standard
articulated in RFRA/RLUIPA.
And, of course, Marty is right that the Court never had much
allegiance to strict scrutiny in the free exercise context in any event.
Marci
In a message dated 5/31/2005 2:15:31 P.M. Eastern Standard Time,
[EMAIL PROTECTED] writes:
Well, yes and no, but
mostly no.
On
its facts, Sherbert involved better treatment for a very narrow slice
of secular interests than for Sherbert's religious interest. That fact
was not noted in the Sherbert opinion, but it was
the Court's basis for preserving the result in Smith.
Sherbert also involved better treatment for Sunday worshipers than
for Saturday worshipers. That fact was noted in the
Sherbert opinion, but it explicitly was not the
Court's basis for its judgment. The Court said that the burden on
Sherbert's religion required compelling justification, and that the religious
discrimination "compounded" the violation. 398 U.S. at 406.
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
512-232-1341 (phone)
512-471-6988 (fax)
Marty-- I would not characterize RLUIPA as reflecting the Sherbert
standard. The Court was quite clear in Smith that Sherbert strict
scrutiny is triggered when the government treats secular reasons more
favorably than it does religious reasons. That is not an issue
here. The standard, if it did appear in earlier cases, is the Wisconsin
v. Yoder standard, which applies strict scrutiny to neutral, generally
applicable laws. I understand that the push for RFRA and
RLUIPA involved hearkening back to Sherbert, but it is my view those arguments
are simply wrong as a historical matter, and as a matter of how the Court has
interpreted its own doctrines. Locke v. Davey provides further support
for my reading of Sherbert.
Marci
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