I was just rereading the principal Hobby Lobby dissent, and was struck again by this passage:
There is an overriding interest, I believe, in keeping the courts "out of the business of evaluating the relative merits of differing religious claims," Lee, 455 U.S., at 263, n. 2, 102 S.Ct. 1051 (Stevens, J., concurring in judgment), or the sincerity with which an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy of accommodation could be "perceived as favoring one religion over another," the very "risk the Establishment Clause was designed to preclude." How can this be reconciled, though, with Justice Ginsburg's and Justice Breyer's (and Justice Stevens') votes in O Centro, or Justice Ginsburg's, Breyer's, Sotomayor's, and Kagan's votes in Holt v. Hobbs? After all, all RFRA claims require judgments about "the sincerity with which an asserted religious belief is held." And all cases "approv[e] some religious claims" - e.g., about hoasca or about short beards - while deeming others (e.g., related to marijuana or long hair) "unworthy of accommodation." Indeed, Justice Stevens' argument in Lee was for abandoning religious exemptions altogether, except perhaps in Sherbert-like "individualized exemptions" cases. If one accepts it, wouldn't the same argument counsel in favor of rejecting the exemptions in cases like O Centro and Holt? (I realize that many of Justice Ginsburg's other arguments are limited to Hobby Lobby, but here I just focus on this one.) Eugene
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