Eugene writes: 2. Zubik, like other RFRA cases, are – at least ostensibly – about implementing Congress’s will, including its will in enacting RFRA. But Congress, when it enacted RFRA, expressly took the view that religious accommodation claims should be treated as akin to constitutional objections (since it disagreed with the majority opinion in Smith). So “the way constitutional objections work is you might have to change current law” was likely intended (and understood) as shorthand for (a) the way constitutional objections work is that you might have to change current law, (b) Congress meant to incorporate a constitutional-objection way of thinking into RFRA, and (c) RFRA objections thus work the same way.
This would all be correct if only we switched out "pre-Smith Free Exercise" for "constitutional." The way *some *constitutional objections work is that "you might have to change current law"--think, for instance, of facial challenges to laws that discriminate on the basis of race, religion, or speech content, such as *Lukumi *or *Ashcroft v. ACLU*. But that was *not *how pre-*Smith *Free Exercise doctrine worked. And *that *doctrine--not, e.g., the doctrine governing content-based speech statutes--was the discrete jurisprudence of constitutional law that Congress incorporated into RFRA. This is the principal argument in our amicus brief and in my recent paper: http://www.scotusblog.com/wp-content/uploads/2016/02/02.17.16_amicus_brief_in_support_of_respondents-_religious_liberty_scholars.pdf http://www.yalelawjournal.org/pdf/Lederman_PDF_pt9q3ynr.pdf On Sun, Apr 10, 2016 at 5:47 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > Mary Anne Case asked: > > > > 1) Why does everyone on the Court seem so blithely to agree with Paul > Clement that for the government to take over a room in the Little Sisters’ > facility to operate a Title X clinic, even if they paid market price for > the room, would of course be impermissible? Couldn’t such a government > action be seen as a taking for public use with just compensation? Are RFRA > and/or RLUIPA thought more generally to protect religiously motivated > property owners from what would otherwise be permissible takings? If so, > are there cases? And specifically with respect to access to contraception, > might it not sometimes be the less restrictive alternative for a > government, for example, to use eminent domain to take over space in, for > example, a Catholic health care facility, in which medical goods and > services which the facility objects to providing might be made available? > > > > 2) When Roberts says, “Well, the way constitutional objections work is you > might have to change current law,” why is the response merely “laughter” > rather than the observation that a RFRA objection is not a constitutional > objection? > > > > Two quick reactions: > > > > 1. I think that RFRA may well protect religiously motivated property > owners from what would otherwise be permissible takings. Indeed, one of > the few *Sherbert/Yoder*-era appellate court victories (however > tentative) for a religious exemption claim was *Pillar of Fire v. Denver > Urban Renewal Authority*, 509 P.2d 1250 (Colo. 1973), which held that a > church might be able to prevail under the Free Exercise Clause in its > challenge to a government action condemning the church that formed the > birthplace of plaintiff’s religious denomination. I recognize, though, > that this sort of claim (our property is of special religious significance > to us) may be different, for substantial burden purposes, from the claim > contemplated by the question (we don’t want our property used for sinful > purposes, even if it’s taken by the government). > > > > 2. * Zubik*, like other RFRA cases, are – at least ostensibly – about > implementing Congress’s will, including its will in enacting RFRA. But > Congress, when it enacted RFRA, expressly took the view that religious > accommodation claims should be treated as akin to constitutional objections > (since it disagreed with the majority opinion in *Smith*). So “the way > constitutional objections work is you might have to change current law” was > likely intended (and understood) as shorthand for (a) the way > constitutional objections work is that you might have to change current > law, (b) Congress meant to incorporate a constitutional-objection way of > thinking into RFRA, and (c) RFRA objections thus work the same way. > > > > Eugene > > > > _______________________________________________ > 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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