Unfortunately, for many, the entire spectrum of "religious liberty" in the United States appears to revolve around LGBT rights. That may, in fact, be the case for religious "majorities" who are not otherwise adversely affected by facially neutral state laws that infringe upon their religious practices and who cry "persecution!" at the slightest provocation.
But going back to the original Smith case where members of a native American group were denied their unemployment benefits because of peyote use, the people who could really benefit from state RFRAs aren't just visible on the surface but are the minorities whose situations need to be "teased out" from between the social cracks. Certainly Antonin Scalia, lauded for his "conservative" credentials, is often forgotten in his role of drafting the Smith decision in the first place, although now it is the conservatives who are on the losing end of the latest social/legal developments and who now claim to be most in need of RFRA's protections. Nor is it lost that the original proponents of RFRA often came from the left, and as Professor Brownstein notes, the California RFRA was vetoed by a Republican in 1998. RFRA exists for religious minorities such as a Sikh teacher in a public school who wears religious garb as part of who she is, not to proselytize. It is to protect an Orthodox Jewish person who is forced by state law to take an exam on Saturday. And yes, it is to protect a native American who may lose employment benefits because he uses peyote as part of a religious ritual. To understand the full value of RFRA, one must look to members of religious minorities and observe when they are unintentionally adversely affected by neutral laws. Then an effort must be made to attempt to to try to accommodate them. These kinds of situations normally won't make the headlines, but it is at the heart of why RFRA matters. Michael Peabody, Esq. Editor ReligiousLiberty.TV http://www.religiousliberty.tv On Mon, Mar 28, 2016 at 2:50 PM, Michael Worley <mwor...@byulaw.net> wrote: > More than fair comments by Alan. > > On Mon, Mar 28, 2016 at 3:43 PM, Alan E Brownstein > <aebrownst...@ucdavis.edu> wrote: >> >> My post was descriptive, not normative. In addition to the two cases, >> Michael mentions there have been several state RFRA cases decided since >> 2000. Several of Christopher Lund’s articles describe these cases. I see no >> pattern that provides a narrative to explain those cases. Chris doesn’t >> either – although I think he believes, as I do, that these laws are useful >> in ad hoc circumstances to protect religious liberty. >> >> >> >> Perhaps Michael is suggesting that there doesn’t need to be a narrative >> identifying real world problems to justify new RFRA laws. I think the >> narratives I described were very helpful before 2000. Certainly proponents >> of state RFRA bills back then talked about these issues a lot. And >> legislators at least acted as if they wanted to understand the problems that >> needed to be addressed by the proposed law. >> >> >> >> Maybe a narrative isn’t necessary today and the utility of state RFRA >> bills should be self-evident. I am struck, however, by the difficulty state >> proponents of these laws seem to experience in explaining why these laws are >> so important if their goal is not to permit discrimination against the LGBT >> community. I have not heard anyone argue that the reason for a state RFRA is >> that the state needs to replicate O Centro and Hobby Lobby at the state >> level. >> >> >> >> I think state RFRA bills are defensible, although I would exclude civil >> rights laws from their coverage and try to deal with possible exemptions >> from such laws through separate legislation. I am far less confident that I >> can provide a justification for my views that would be adopted by >> legislators or persuasive to voters. To do that – particularly when >> concerns about LGBT discrimination are so obvious and salient – may require >> a real world narrative. >> >> >> >> Alan >> >> >> >> From: religionlaw-boun...@lists.ucla.edu >> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Worley >> Sent: Monday, March 28, 2016 1:58 PM >> >> >> To: Law & Religion issues for Law Academics >> Subject: Re: Arizona, Indiana . . . and now Georgia >> >> >> >> Well, we've had two major RFRA cases-- O Centro and Hobby Lobby-- since >> 2000; surely replicating those victories for state claimants does not >> reflect a focus on LGBT issues. likewise, pre-2000 RFRA cases at the state >> court level could likewise be used, even if it is true that no such cases >> have emerged post-2000. >> >> I'm not suggesting every state RFRA should be designed to follow how past >> RFRAs have been applied, but such broad and formerly almost universally >> praised legislation should be defensible without discussing a relatively >> narrow aspect of it as the bill's reason for being. >> >> >> >> On Mon, Mar 28, 2016 at 2:34 PM, Alan E Brownstein >> <aebrownst...@ucdavis.edu> wrote: >> >> Based purely on anecdotal information, I think this issue is based more on >> timing than on legislative history. I worked on the attempt to get a state >> RFRA passed in California in 1998. The bill passed both houses of the >> legislature -- controlled by the Democrats -- only to be vetoed by the >> Republican governor. >> >> >> >> While proponents of the bill made the basic abstract arguments in favor of >> the bill – explaining why free exercise rights should apply against neutral >> laws of general applicability – the two narratives which were most salient >> and which seemed most persuasive involved land use regulation problems and >> the difficulties houses of worship experienced in the zoning process and the >> problems experienced by inmates trying to practice their faith in prison. >> >> >> >> With the passage of RLUIPA in 2000, both of these narratives have been >> taken off the table. As far as I know there is no pattern of state RFRA >> cases or religious liberty disputes supporting an alternative narrative to >> justify new state RFRA laws since 2000 other than those involving >> discrimination against the LGBT community. That is why proponents of new >> RFRA bills see, e.g. the Governor of Indiana, seem so befuddled when they >> are asked to explain the problems the law is supposed to solve – if it isn’t >> designed to accommodate religious objectors to same-sex marriage or other >> LGBT rights. >> >> >> >> Alan Brownstein >> >> >> >> From: religionlaw-boun...@lists.ucla.edu >> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Worley >> Sent: Monday, March 28, 2016 12:26 PM >> To: Law & Religion issues for Law Academics >> Subject: Re: Arizona, Indiana . . . and now Georgia >> >> >> >> Question for list members: >> >> >> >> What language and/or legislative history would you look for in a bill that >> has in order to consider it having the same intent as the original RFRA, and >> other state RFRAs that were passed absent the LGBT controversy now present? >> >> >> >> On Mon, Mar 28, 2016 at 1:18 PM, Marty Lederman <lederman.ma...@gmail.com> >> wrote: >> >> >> https://gov.georgia.gov/press-releases/2016-03-28/transcript-deal-hb-757-remarks-0 >> >> >> >> The bill: >> >> >> >> http://www.legis.ga.gov/Legislation/20152016/161054.pdf >> >> >> _______________________________________________ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. >> >> >> >> >> >> -- >> >> Michael Worley >> >> J.D., Brigham Young University >> >> >> _______________________________________________ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. >> >> >> >> >> >> -- >> >> Michael Worley >> >> J.D., Brigham Young University >> >> >> _______________________________________________ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. > > > > > -- > Michael Worley > J.D., Brigham Young University > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
