Re: Strict scrutiny, from Sherbert/Yoder to RFRA
On Alan's second point, concerning the confusion between holding that a statutory free-exercise accommodation is required because the state cannot satisfy strict scrutiny and holding that a statutory free-exercise accommodation is prohibited because it violates the Establishment Clause, there is an interesting comparison that we can draw here to affirmative action and the Equal Protection Clause. If you recall, in the Court's affirmative-action cases, the conservative Justices often mentioned how there would be no violation of the EPC if the affirmative action functioned as a remedy for past state-sanctioned racial discrimination. But the Justices often oscillated between referring to affirmative action in such a case as being permissible because it would satisfy strict scrutiny or permissible because it would be constitutionally required by the Equal Protection Clause (based on the Swann and Green rulings). We see a similar form of reasoning with free-exercise accommodations, when they are granted (as in Amos) or denied (as in Davey). Indeed, we see such a confusion in Justice Scalia's Davey dissent, where he referred to how Washington would be allowed to deny Joshua Davey the scholarship on the basis of religion only if granting the scholarship would have violated the Establishment Clause, because in such an instance the state would have a compelling interest in the denial. But I don't think it makes sense to use the strict-scrutiny framework in these types of cases dealing with conflicting constitutional obligations, because applying that framework involves saying there is a compelling interest in enforcing one constitutional right over another. How could the Establishment Clause generate the state's compelling interest to deny Davey the scholarship, if that denial would clearly run afoul of the Smith test? If the government has a compelling interest in complying with the Establishment Clause, it must also have such an interest in complying with the Free Exercise Clause. Strict scrutiny really has no place in the analysis of conflicting constitutional duties. -Jesse On Sun, Jun 17, 2012 at 5:18 PM, Alan Brownstein wrote: > Let me continue Mark and Eugene and Chris' thoughtful line of thinking here. > > > > First, it may, indeed, be appropriate to use some form of intermediate level > of scrutiny in some free exercise cases. It may also be appropriate to use a > higher or lower standard of review in other cases. It has never been clear > to me why it so often seems to be assumed that all free eercise cases must > be reviewed under the same standard of review. Certainly, in the free speech > area we recognize that a more nuanced doctrine is necessary that applies > different standards of review in different circumstances. Some variation in > standards of review may be necessary and appropriate in the free exercise > area as well. > > > > Second, if we are talking about statutory accommodations (such as RFRA), it > seems to me that there is a confusing dissonance between the explicitly > rigorous strict scrutiny standard that many statutes employ and the extent > to which an accommodation will be permitted under the Establishment Clause. > Even if a court interprets a state RFRA to require an accommodation because > the state's interest cannot satisfy strict scrutiny review, this application > of RFRA may violate the Establishment Clause if it goes too far in > privileging religion and imposing unacceptable costs on non-beneficiaries. > That's certainly how I understand the Cutter opinion and its frequent > references to accommodations not imposing unacceptable burdens on third > parties or public institutions. If the Establishment Clause limit on > accommodation costs is less demanding than a compelling state interest > requirement (e.g., courts might not consider avoiding those costs to > constitute a compelling state interest for statutory purposes), the > constitutional standard will cap the accommodation whatever the statute > says. > > > > Alan Brownstein > > > From: religionlaw-boun...@lists.ucla.edu > [religionlaw-boun...@lists.ucla.edu] on behalf of Christopher Lund > [l...@wayne.edu] > Sent: Sunday, June 17, 2012 1:36 PM > > To: 'Law & Religion issues for Law Academics' > Subject: RE: Strict scrutiny, from Sherbert/Yoder to RFRA > > I wanted to send out a thought relating to earlier posts by Mark Graber and > Eugene Volokh. They suggest an intermediate standard of review, somewhere > between strict scrutiny and Smith. I think they are right on the key > point. The usual “strict scrutiny” standard – i.e., strict in theory, > fatal in fact – won’t work for free exercise. It’s too harsh a standard. > I think defenders of regulatory exceptions g
RE: Strict scrutiny, from Sherbert/Yoder to RFRA
If I understand it right, I think Eric's second paragraph is a better way of putting it than I did. I suggested that the compelling-interest test is lighter in the Free Exercise context than in the Free Speech context. Eric is saying, "No, it's the same test--there are just more compelling governmental interests in the Free Exercise cases, because a person's exercise of religion is more likely to impermissibly affect third parties than a person's mere speech." That's better, significantly better, than what I said. But vis-à-vis my conversation with Eugene, it's making the same point: There is no problem if the compelling-interest test is "strict in theory, fatal in fact" for Free Speech cases of content- and viewpoint-discrimination, but not "strict in theory, fatal in fact" in Free Exercise cases. There's no problematic inconsistency. And I've seen no evidence of actual confusion in the cases. (Though if I'm wrong, again I'd like to know.) On the other things too, I agree with Eric. I agree that a fundamental problem with Smith is that uniform laws backed by relatively weak government interests get absolutely no scrutiny. I don't even think it's rational basis--I think Smith means no review at all. In class I teach a case, Filinovich v. Claar, 2006 WL 1994580 (N.D. Ill.), about a Jehovah's Witness selected to be Director of Finance for a small town. Four times a year, she's supposed to go to the town's budget meetings, held on Saturday mornings for a couple of hours. She says she can't do that, for religious reasons--she's a Sabbatarian. She points out all these ways in which she could easily be accommodated. The district judge cuts her off at the pleadings stage, explaining that she has gotten Employment Division v. Smith all wrong: "For the employment requirement to be neutral and generally applicable, Defendants need not make, or even try to make, a reasonable accommodation for Plaintiffs religious practice." Id. at *5. They don't even need to try. In the vast run of these cases, Smith means no protection against governmental interference, no protection against governmental neglect or indifference, and limited protection against governmental bigotry because it is so difficult to prove. Eric is also right that the compelling-interest test is noticeably different in O Centro than it was in the Sherbert/Yoder days. Justice O'Connor is the middle justice in Smith, where she concurs. She says that there's a compelling interest, because peyote is a dangerous drug and any exception at all will threaten the regulatory scheme. But that logic is rejected in O Centro. It isn't just rejected; it's mocked, and by a unanimous Court (as Eric quoted below). That's a huge difference. Again, a variety of styles of "compelling-interest test" analysis both within Free Exercise and outside of it. The point of my initial post was this. If you don't like the results that courts are reaching under the compelling-interest test, then it makes sense that you would want to do away with it. But some people seem to really like the results that RFRA and state RFRAs are reaching, but object to the linguistics of the test. That's what I'm not understanding. Best, Chris -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Sunday, June 17, 2012 6:02 PM To: Law & Religion issues for Law Academics Subject: RE: Strict scrutiny, from Sherbert/Yoder to RFRA Chris -- I don't think you should read as much as you do into "sensible balances" in O Centro, since it is after all a quote from the statute. In fact, the way I read it, the Court quotes the statute to affirm what Congress did, namely define the full-throated compelling interest test as a method of sensible balancing, i.e. the test works. Recall that the DEA's approach in O Centro was to complain that applying RFRA to the Controlled Substances Act would upset their supposedly carefully calibrated closed and comprehensive system of drug regulation, make sure the Court was aware that "mind-altering" hallucinogenic tea is really weird and scary and will hurt babies in utero, and hope that the Court would give them a free pass for security/law enforcement reasons. The Court responds to this approach by defining the compelling interest test in its full vigor as a way of sensible balancing while (gently) mocking the DEA's complaints as "the classic rejoinder of bureaucrats throughout history." To my mind that is a pretty strong rejection of the idea that there is something wrong with applying the compelling interest test with full force to religious exercise claims. The Court was expressly rejecting DEA's argument that the compelling inte
RE: Strict scrutiny, from Sherbert/Yoder to RFRA
Chris -- I don't think you should read as much as you do into "sensible balances" in O Centro, since it is after all a quote from the statute. In fact, the way I read it, the Court quotes the statute to affirm what Congress did, namely define the full-throated compelling interest test as a method of sensible balancing, i.e. the test works. Recall that the DEA's approach in O Centro was to complain that applying RFRA to the Controlled Substances Act would upset their supposedly carefully calibrated closed and comprehensive system of drug regulation, make sure the Court was aware that "mind-altering" hallucinogenic tea is really weird and scary and will hurt babies in utero, and hope that the Court would give them a free pass for security/law enforcement reasons. The Court responds to this approach by defining the compelling interest test in its full vigor as a way of sensible balancing while (gently) mocking the DEA's complaints as "the classic rejoinder of bureaucrats throughout history." To my mind that is a pretty strong rejection of the idea that there is something wrong with applying the compelling interest test with full force to religious exercise claims. The Court was expressly rejecting DEA's argument that the compelling interest test should be kept out of the drug regulation system. So I don't see how you get from there to the idea that the Court was saying that the compelling interest test should be softer with respect to a religious exercise claim than it is elsewhere. How else can you explain the Court's reliance on Ashcroft v. ACLU? On the broader notion that we need a "soft" or "weak" version of the compelling interest test for religious exercise claims: Why? The fact that lower federal courts or state courts have been reluctant to provide certain kinds of remedies (partly because they are exercising a form of docket control) doesn't seem like a strong argument for shaving down federal civil rights laws like RLUIPA. That is especially so since the compelling interest test is naturally more government-friendly when it comes to religious conduct cases: Religious conduct claims will rightfully trigger strict scrutiny much more often than speech claims because the effect on third parties in speech cases--hearing something they disagree with--is much less than conduct that affects third parties directly. Put another way, there is no speech analogue to the CGI invoked by the government in a child-sacrifice-to-Moloch free exercise case; even stopping someone from shouting fire in crowded theater is not as strong a CGI. So courts will naturally find more CGIs to defeat religious conduct claims than they will find to defeat speech claims. (This is a point that Doug Laycock has made before.) That means that the compelling interest test is working, not that there is a problem with it. Moreover, there is a real problem with the underlying analytical approach here that unjustly puts the burden on the religious entity to justify the exception. All of the arguments I have seen so far seem to take for granted that there's some problem with making exceptions to the rules our government agencies come up with. Do we really think the DEA is that smart or well-meaning? Given that everyone concedes that a government made up of human beings doesn't and can't possibly get everything right, why is the baseline presumption when it comes to religious exercise claims that government got the rules right in the first place? The presumption should instead be that government actually goofs up with great frequency and we should be on the lookout for mistakes. That means that government rules should be viewed with a jaundiced eye, and when it comes to core constitutional rights like religious liberty or speech we need strong safeguards to account for the certainty of government mistakes/overreaching. So if anything I'd argue that the main problem with both federal RFRA and state RFRAs right now is if anything lower court incomprehension, not a need for squishier standards that can easily be overcome by inevitable government invocations of "security." Eric ___ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund [l...@wayne.edu] Sent: Sunday, June 17, 2012 4:36 PM To: 'Law & Religion issues for Law Academics' Subject: RE: Strict scrutiny, from Sherbert/Yoder to RFRA I wanted to send out a thought relating to earlier posts by Mark Graber and Eugene Volokh. They suggest an intermediate standard of review, somewhere between strict scrutiny and Smith. I think they are right on the key point. The usual “strict scrutiny” standard – i.e., strict in theory, fatal in fact – won’t work for free exercise. It’s too harsh a standard. I think de
Re: Strict scrutiny, from Sherbert/Yoder to RFRA
Alan is too modest for shameless plugs, but he has written very thoughtfully about the need for more fine-grained analysis of free exercise questions, with multiple tests depending on context, in an article in 2006 or so. I think it's called Taking Free Exercise Seriously. On Sun, 17 Jun 2012 21:18:31 + Alan Brownstein wrote: >Let me continue Mark and Eugene and Chris' thoughtful line of thinking here. > > > Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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.
RE: Strict scrutiny, from Sherbert/Yoder to RFRA
Let me continue Mark and Eugene and Chris' thoughtful line of thinking here. First, it may, indeed, be appropriate to use some form of intermediate level of scrutiny in some free exercise cases. It may also be appropriate to use a higher or lower standard of review in other cases. It has never been clear to me why it so often seems to be assumed that all free eercise cases must be reviewed under the same standard of review. Certainly, in the free speech area we recognize that a more nuanced doctrine is necessary that applies different standards of review in different circumstances. Some variation in standards of review may be necessary and appropriate in the free exercise area as well. Second, if we are talking about statutory accommodations (such as RFRA), it seems to me that there is a confusing dissonance between the explicitly rigorous strict scrutiny standard that many statutes employ and the extent to which an accommodation will be permitted under the Establishment Clause. Even if a court interprets a state RFRA to require an accommodation because the state's interest cannot satisfy strict scrutiny review, this application of RFRA may violate the Establishment Clause if it goes too far in privileging religion and imposing unacceptable costs on non-beneficiaries. That's certainly how I understand the Cutter opinion and its frequent references to accommodations not imposing unacceptable burdens on third parties or public institutions. If the Establishment Clause limit on accommodation costs is less demanding than a compelling state interest requirement (e.g., courts might not consider avoiding those costs to constitute a compelling state interest for statutory purposes), the constitutional standard will cap the accommodation whatever the statute says. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Christopher Lund [l...@wayne.edu] Sent: Sunday, June 17, 2012 1:36 PM To: 'Law & Religion issues for Law Academics' Subject: RE: Strict scrutiny, from Sherbert/Yoder to RFRA I wanted to send out a thought relating to earlier posts by Mark Graber and Eugene Volokh. They suggest an intermediate standard of review, somewhere between strict scrutiny and Smith. I think they are right on the key point. The usual “strict scrutiny” standard – i.e., strict in theory, fatal in fact – won’t work for free exercise. It’s too harsh a standard. I think defenders of regulatory exceptions generally believe that. But we also all know that, in the Shebert/Yoder days, the test wasn’t applied like that. “Strict in theory, feeble in fact,” as people say. Justice Scalia says in Smith that this is a problem—that it won’t work to have a “compelling interest” test in Free Exercise that is less stringent that the “compelling interest” test in Free Speech. It will either (1) water down the test in the Free Speech setting, or (2) improperly heighten the test in the Free Exercise setting. Judges will be confused between the two domains, and one domain will screw the other up. Eugene says something similar below. But I don’t know quite why that is; I haven’t seen any evidence of confusion. It seems to me that we could quite sensibly have a compelling-interest test in Free Exercise that is lighter than the compelling-interest test in other areas. The compelling-interest test applies differently in different domains: “Context matters in applying the compelling interest test.” Gonzales v. O Centro, 546 U.S. 418, 431 (2006). Grutter and Lawrence were decided the same term. Grutter upheld an affirmative action program under a deferential version of strict scrutiny; Lawrence struck down a sodomy law under an aggressive version of rational basis. That’s confusing, but no judge tasked with actually applying Grutter will be confused by Lawrence (or vice versa). And what could be more confusing than the current situation? Right now, we have two different compelling-interest tests in the area of Free Exercise alone. Gonzales v. UDV applied RFRA’s compelling-interest test and said that it required “sensible balances” between religious liberty and governmental interests. (Gonzales repeats “sensible balances” three times.) That language has been used in state RFRA cases as well. That’s light years away from Lukumi’s compelling-interest test, which really is strict-in-theory-and-fatal-in-fact. But having two different compelling-interest tests seems to have worked fine for Free Exercise. Students get the difference between them. We get it. Courts get it. I mean, occasionally a plaintiff will cite the Lukumi line of cases in support of his RFRA or state RFRA claim, thereby making it seem as if state RFRAs create that sort of ruthless presumption of invalidity. But I don’t think courts are fooled. (One great example of a court not bein
Re: Strict scrutiny, from Sherbert/Yoder to RFRA
I think our levels of scrutiny are too involved and that there are too many. I think the court stumbled upon a way forward in the abortion limitation cases with the "undue burden" test. It changes the focus properly to the the fact that almost any regulation will burden somebody's liberty or rights or equality and the question should be whether in light of all the interests involved, that burden is undue. Of course not all interests are of the same weight and what may be undue in one setting (free exercise or free speech) may be acceptable in another area (carrying arms). I think we could profit from rethinking equality along these lines -- is there a need now for race-based strict scrutiny or would undue burden analysis be enough and allow for appropriate group-based remedies? Maybe someday I'll write that useless article -- useless since I don't see any likelihood in the next 50 years of such a sweeping change in approach, no matter how dysfunctional our current tests have become in many areas. Steve On Jun 17, 2012, at 4:36 PM, Christopher Lund wrote: > I wanted to send out a thought relating to earlier posts by Mark Graber and > Eugene Volokh. They suggest an intermediate standard of review, somewhere > between strict scrutiny and Smith. I think they are right on the key point. > The usual “strict scrutiny” standard – i.e., strict in theory, fatal in fact > – won’t work for free exercise. It’s too harsh a standard. I think > defenders of regulatory exceptions generally believe that. But we also all > know that, in the Shebert/Yoder days, the test wasn’t applied like that. > “Strict in theory, feeble in fact,” as people say. > > Justice Scalia says in Smith that this is a problem—that it won’t work to > have a “compelling interest” test in Free Exercise that is less stringent > that the “compelling interest” test in Free Speech. It will either (1) water > down the test in the Free Speech setting, or (2) improperly heighten the test > in the Free Exercise setting. Judges will be confused between the two > domains, and one domain will screw the other up. Eugene says something > similar below. > > But I don’t know quite why that is; I haven’t seen any evidence of confusion. > It seems to me that we could quite sensibly have a compelling-interest test > in Free Exercise that is lighter than the compelling-interest test in other > areas. The compelling-interest test applies differently in different > domains: “Context matters in applying the compelling interest test.” Gonzales > v. O Centro, 546 U.S. 418, 431 (2006). Grutter and Lawrence were decided the > same term. Grutter upheld an affirmative action program under a deferential > version of strict scrutiny; Lawrence struck down a sodomy law under an > aggressive version of rational basis. That’s confusing, but no judge tasked > with actually applying Grutter will be confused by Lawrence (or vice versa). > > And what could be more confusing than the current situation? Right now, we > have two different compelling-interest tests in the area of Free Exercise > alone. Gonzales v. UDV applied RFRA’s compelling-interest test and said that > it required “sensible balances” between religious liberty and governmental > interests. (Gonzales repeats “sensible balances” three times.) That > language has been used in state RFRA cases as well. That’s light years away > from Lukumi’s compelling-interest test, which really is > strict-in-theory-and-fatal-in-fact. But having two different > compelling-interest tests seems to have worked fine for Free Exercise. > Students get the difference between them. We get it. Courts get it. I > mean, occasionally a plaintiff will cite theLukumi line of cases in support > of his RFRA or state RFRA claim, thereby making it seem as if state RFRAs > create that sort of ruthless presumption of invalidity. But I don’t think > courts are fooled. (One great example of a court not being fooled is State > v. Hardesty, 214 P.3d 1004, 1008-09 (Ariz. 2009)). No confusion, as far as I > can tell. So what then is wrong with RFRA’s compelling-interest test, if we > agree that “compelling interest” can’t mean here what it might mean in other > places? > > Best, > Chris > > From: Volokh, Eugene > Sent: Friday, June 15, 2012 10:44 AM > To: Law & Religion issues for Law Academics > Subject: Strict scrutiny, from Sherbert/Yoder to RFRA > > I disagree on very much with Marci, and I’m not sure that the > Sherbert/Yoder test would have been inapplicable to the things that NARAL and > CHILD fears. > > But Marci’s more general point strikes me as quite correct: At least if read > literally, RFRA enacts an across-the-board stri
RE: Strict scrutiny, from Sherbert/Yoder to RFRA
I wanted to send out a thought relating to earlier posts by Mark Graber and Eugene Volokh. They suggest an intermediate standard of review, somewhere between strict scrutiny and Smith. I think they are right on the key point. The usual “strict scrutiny” standard – i.e., strict in theory, fatal in fact – won’t work for free exercise. It’s too harsh a standard. I think defenders of regulatory exceptions generally believe that. But we also all know that, in the Shebert/Yoder days, the test wasn’t applied like that. “Strict in theory, feeble in fact,” as people say. Justice Scalia says in Smith that this is a problem—that it won’t work to have a “compelling interest” test in Free Exercise that is less stringent that the “compelling interest” test in Free Speech. It will either (1) water down the test in the Free Speech setting, or (2) improperly heighten the test in the Free Exercise setting. Judges will be confused between the two domains, and one domain will screw the other up. Eugene says something similar below. But I don’t know quite why that is; I haven’t seen any evidence of confusion. It seems to me that we could quite sensibly have a compelling-interest test in Free Exercise that is lighter than the compelling-interest test in other areas. The compelling-interest test applies differently in different domains: “Context matters in applying the compelling interest test.” Gonzales v. O Centro, 546 U.S. 418, 431 (2006). Grutter and Lawrence were decided the same term. Grutter upheld an affirmative action program under a deferential version of strict scrutiny; Lawrence struck down a sodomy law under an aggressive version of rational basis. That’s confusing, but no judge tasked with actually applying Grutter will be confused by Lawrence (or vice versa). And what could be more confusing than the current situation? Right now, we have two different compelling-interest tests in the area of Free Exercise alone. Gonzales v. UDV applied RFRA’s compelling-interest test and said that it required “sensible balances” between religious liberty and governmental interests. (Gonzales repeats “sensible balances” three times.) That language has been used in state RFRA cases as well. That’s light years away from Lukumi’s compelling-interest test, which really is strict-in-theory-and-fatal-in-fact. But having two different compelling-interest tests seems to have worked fine for Free Exercise. Students get the difference between them. We get it. Courts get it. I mean, occasionally a plaintiff will cite the Lukumi line of cases in support of his RFRA or state RFRA claim, thereby making it seem as if state RFRAs create that sort of ruthless presumption of invalidity. But I don’t think courts are fooled. (One great example of a court not being fooled is State v. Hardesty, 214 P.3d 1004, 1008-09 (Ariz. 2009)). No confusion, as far as I can tell. So what then is wrong with RFRA’s compelling-interest test, if we agree that “compelling interest” can’t mean here what it might mean in other places? Best, Chris From: Volokh, Eugene Sent: Friday, June 15, 2012 10:44 AM To: Law & Religion issues for Law Academics Subject: Strict scrutiny, from Sherbert/Yoder to RFRA I disagree on very much with Marci, and I’m not sure that the Sherbert/Yoder test would have been inapplicable to the things that NARAL and CHILD fears. But Marci’s more general point strikes me as quite correct: At least if read literally, RFRA enacts an across-the-board strict scrutiny test, which the Court in the Sherbert/Yoder era never did. For instance, when the government was acting as prison administrator or as commander of military personnel, the religious exemption test--like the Free Speech Clause test--was close to the rational basis framework. Lower courts adopted a similarly deferential test for probation conditions that incidentally interfered with religious practices. When the government was acting as employer, some lower courts likewise adopted fairly (but not entirely) deferential tests borrowed from the Pickering test applied in government employee free speech cases. There was no agreed-on test for the government acting as educator in kindergarten through high school, but courts at least had the option of concluding that the free exercise test--like the free speech test--should be relatively deferential in these cases, too. When the government was acting as sovereign, the test was usually strict scrutiny, but not always. For claimants requesting exemptions from generally applicable speech restrictions, the free exercise test was the same as the free speech test, which might differ from strict scrutiny. Content-neutral restrictions on the time, place, or manner of speech, for instance, are only subject to a form of intermediate scrutiny under the Free Speech Clause, and Heffron v. ISKCON held that this same quasi-intermed
Strict scrutiny, from Sherbert/Yoder to RFRA
From: Volokh, Eugene Sent: Friday, June 15, 2012 10:44 AM To: Law & Religion issues for Law Academics Subject: Strict scrutiny, from Sherbert/Yoder to RFRA I disagree on very much with Marci, and I’m not sure that the Sherbert/Yoder test would have been inapplicable to the things that NARAL and CHILD fears. But Marci’s more general point strikes me as quite correct: At least if read literally, RFRA enacts an across-the-board strict scrutiny test, which the Court in the Sherbert/Yoder era never did. For instance, when the government was acting as prison administrator or as commander of military personnel, the religious exemption test--like the Free Speech Clause test--was close to the rational basis framework. Lower courts adopted a similarly deferential test for probation conditions that incidentally interfered with religious practices. When the government was acting as employer, some lower courts likewise adopted fairly (but not entirely) deferential tests borrowed from the Pickering test applied in government employee free speech cases. There was no agreed-on test for the government acting as educator in kindergarten through high school, but courts at least had the option of concluding that the free exercise test--like the free speech test--should be relatively deferential in these cases, too. When the government was acting as sovereign, the test was usually strict scrutiny, but not always. For claimants requesting exemptions from generally applicable speech restrictions, the free exercise test was the same as the free speech test, which might differ from strict scrutiny. Content-neutral restrictions on the time, place, or manner of speech, for instance, are only subject to a form of intermediate scrutiny under the Free Speech Clause, and Heffron v. ISKCON held that this same quasi-intermediate scrutiny was applicable to requests for religious exemptions from such restrictions. Similarly, some lower court cases suggested that zoning restrictions were subject to a lower standard of scrutiny. Now perhaps the same results could be reached by applying strict scrutiny with an eye towards the special circumstances present in those cases – but that, even more than the Court’s “feeble in fact” version of strict scrutiny applied in cases such as Lee, Bob Jones, and the like, would in practice be a way of avoiding strict scrutiny rather than a way of honestly applying it. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Friday, June 15, 2012 12:09 AM To: Law & Religion issues for Law Academics Cc: Law & Religion issues for Law Academics Subject: Re: Religious exemptions in ND The Sherbert/Yoder test was never treated by the Supreme Court as a test available across the board. So NARAL's concerns and CHILD 's Issues would not have been controlled by it The concern is not over enforcement but rather enforcement Giving religious groups more power to endanger children is not a good idea. Marci ___ 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.
