Posted by Eugene Volokh:
What do you do with a court opinion like this?
(Warning: Pretty technical legal stuff ahead.)
Florida has enacted the Florida Religious Freedom Restoration Act,
which presumptively mandates religious exemptions from generally
applicable laws that end up substantially burdening religious beliefs.
(The government can rebut this presumption by showing that denying the
exemption is necessary to serve a compelling government interest.) A
Boca Raton city ordinance bars vertical markers on graves in a
city-run cemetery; some people sued, claiming that this substantially
burdened their religious beliefs, because their beliefs led them to
prefer vertical markers.
The Florida Supreme Court [1]rejected this claim, and I have no
objection to this. But here's how it rejected it -- on pp. 18-19 the
court says this (paragraph break added):
The protection afforded to the free exercise of religiously
motivated activity under the FRFRA is broader than that afforded by
the decisions of the United States Supreme Court for two
interrelated reasons. First, the FRFRA expands the free exercise
right as construed by the Supreme Court in Smith because it
reinstates the Court's pre-Smith holdings by applying the
compelling interest test to neutral laws of general application.
Second, under the FRFRA the definition of protected "exercise of
religion" subject to the compelling state interest test includes
any act or refusal to act whether or not compelled by or central to
a system of religious belief. The legislative history of the FRFRA
suggests that in order to state a claim that the government has
infringed upon the free exercise of religion, a plaintiff must only
establish that the government has placed a substantial burden on a
practice motivated by a sincere religious belief.
SO far so good. But then on p. 21, the court says:
[W]e hold that a substantial burden on the free exercise of
religion is one that either compels the religious adherent to
engage in conduct that his religion forbids or forbids him to
engage in conduct that his religion requires.
So what are courts and government officials to do? At first, the court
says that religious motivation is enough to presumptively get an
exemption, and that it doesn't matter whether the action or refusal to
act is compelled by one's religious belief. But then it holds that the
question is whether the action is compelled or forbidden (which means
that refusal to act is compelled) by religious belief. Seems pretty
inconsistent to me.
References
1. http://www.flcourts.org/sct/sctdocs/ops/sc01-2206.pdf
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