As reflected in my recent article and (with Gordon/Greenawalt/Lupu/Tuttle) amicus brief, I have become convinced that where RFRA(s) went "wrong" is when advocates and judges started insisting--mistakenly, in the case of federal RFRA--that it is more demanding than the pre-*Smith* Free Exercise doctrine. Under that pre-*Smith *jurisprudence, the contraception and antidiscrimination cases would not be close calls. And if the Court were to hold (as it should) that RFRA does incorporate the pre-*Smith *jurisprudence, and does not go well beyond that law to impose an "exceptionally demanding" test of the government (as the Court has suggested in *Boerne *and *HL*), then RFRA (and state RFRAs) will once again become far more palatable to a much broader coalition. But of course, as Doug notes, if there's no prospect of prevailing in the contraception and discrimination cases, then there won't be much impetus for new RFRAs on the right.
On Mon, Mar 28, 2016 at 8:32 PM, Laycock, H Douglas (hdl5c) < hd...@virginia.edu> wrote: > The cases of the sort Michael describes (and that Chris Lund has described > in public work) are still out there; they still happen. And the cases Paul > Finkelman imagines, in which state RFRAs justify all kinds of > discrimination against gays, are not out there. They have not happened. > > But gay rights and contraception are getting all the political and press > attention. Both sides are to blame. Republican legislators who are only now > getting around to enacting RFRAs didn't care about the generally small > religious minorities in the cases that don't raise culture war issues. They > and their predecessors weren't motivated to pass a RFRA back when all the > other states were. They don't talk about those cases now, not because they > aren't happening, but because they don't know about them and apparently > wouldn't care if they knew. So they promise their base things about > marriage equality that they can't possibly deliver. At the Republican > debate in Houston, a reporter asked a long series of questions about > religious liberty, and all he got from the candidates was gays and > contraception. That's the only religious liberty issue they know about it. > > And then the other side plays off this rhetoric, and imagines horror > stories with no basis in experience, and some that are beyond imagining. > Emergency med techs could refuse to treat gays! The Indiana RFRA "feels > very much like a prelude to another Kristallnacht." Both real "arguments" > that got reported in the press as though they were serious. > > If anyone needs a narrative about why RFRAs are still needed, just > consider the Kansas woman who died for her faith for lack of a state RFRA. > She was Jehovah's Witness, She needed a bloodless liver transplant. It was > available in Omaha. It was even cheaper than a Kansas transplant with blood > transfusions. But Kansas Medicaid doesn't pay for out of state medical > care. Neutral and generally applicable rule. Kansas argued that the state > constitution should be interpreted to mean Smith. By the time she won that > lawsuit on appeal, her medical condition had deteriorated to where she was > no longer eligible for a transplant. Stinemetz v. Kansas Health Policy > Authority, 252 P.3d 141 (Kan. Ct. App. 2011). > > Douglas Laycock > Robert E. Scott Distinguished Professor of Law > University of Virginia > 580 Massie Road > Charlottesville, VA 22903 > 434-243-8546 > > ________________________________________ > From: religionlaw-boun...@lists.ucla.edu [ > religionlaw-boun...@lists.ucla.edu] on behalf of Michael Peabody [ > mich...@californialaw.org] > Sent: Monday, March 28, 2016 7:01 PM > To: Law & Religion issues for Law Academics > Subject: Re: Arizona, Indiana . . . and now Georgia > > 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 > > > > _______________________________________________ > 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. >
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