Posted by Eugene Volokh:
Religious Accommodations:
http://volokh.com/archives/archive_2008_08_03-2008_08_09.shtml#1218062715
My post on [1]religious accommodations, and in particular the
statement, "But requests from minority religious groups (including
recent immigrant groups) for accommodation are a longstanding and
respectable part of the American tradition of religious freedom," drew
this response from a commenter:
Correction: It's not part of American tradition but part of a U.S.
Supreme Court adventurism under the faulty disguise it has the
power to dictate social religious preferences within states.
Actually:
1. None of the examples I gave are U.S.-Supreme-Court-mandated
religious accommodations; all were done by the democratic process.
2. While from 1963 to 1990, the U.S. Supreme Court read the
Constitution as mandating some sorts of religious accommodations, the
1990 Employment Division v. Smith decision almost entirely rejected
that doctrine. The rule right now is that the Free Exercise Clause
almost never mandates religious exemptions from generally applicable
laws. (I have written [2]in support of the Smith constitutional rule.)
3. Following the Smith decision, it was Congress that enacted the
Religious Freedom Restoration Act, which provided that governments
have to exempt religious objectors from generally applicable laws that
burdened their religious practices (unless applying the law to the
objector was necessary to serve a compelling government interest).
Congress voted in favor of RFRA by a 97-3 vote in the Senate and by
voice vote with no objection in the House.
4. It was then the Supreme Court, in 1997, that struck down RFRA as it
applied to states. State legislatures in about a dozen states, and
state voters in Alabama, have since enacted state-level RFRAs that do
apply to state laws. (State supreme courts in about a dozen more
states have also read their state constitutions as mandating some
sorts of exemptions from generally applicable laws.)
So you can fault the Court for lots of things, but don't turn
hostility to the Court -- or even to constitutional constraints on
legislative action more broadly -- into a macro (ctrl-shift-A for
"activism") that becomes a blanket response to everything. The
American tradition of religious accommodation has generally been a
tradition of accommodation precisely by the political branches of
government.
References
1. http://volokh.com/posts/1218058942.shtml
2. http://www.law.ucla.edu/volokh/relfree.htm
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
