What if, in 1990, Chief Justice Rehnquist had assigned the opinion in Smith to
O'Connor instead of Scalia? The result in the instant case, of course, would
have been the same, but instead of junking the Free Exercise Clause, as Scalia
basically did, the argument would have been that Oregon had
Consistent with Steve's post, the Court in City of Boerne v. Flores at least
hinted that RFRA could be interpreted to require intermediate rather than
full-fledged strict scrutiny: "Even assuming RFRA would be interpreted in
effect to mandate some lesser test, say one equivalent to intermediate
I don't think Marty is suggesting otherwise, but on the substantial burden
issue and the Iqbal/Twombly point, I can't think that there would have to be a
new lawsuit. Wouldn't the Supreme Court properly remand to permit the district
court to grant leave to amend the complaint under FRCP 15(a)(2
I think Mary is dead-on on this point and would love to see the court interpret
RFRA as inherently and unavoidably including some sort of balancing test that
takes into account not just whether the burden is substantial, but just how
substantial or intrusive it is, as well as recognizing that th
Thanks very much to everyone for the responses. Some follow-ups:
1. Most importantly, in response to Alan, the less-restrictive "solution"
that appeared to have some traction with the Justices was *not* simply that
the government could in theory pay for the services (with single-payer or a
new t
