"Courts' institutional incompetence"

[Hamilton02 at aol.com]

The religious majority/minority point is a red herring.  First, there  is no 
religious sect that commands a majority in the United States, and the  label 
"Protestantism" does not disprove this point.  There are religions  with more 
or less political power, to be sure.  
 
 Second, as I document in God vs. the Gavel,  non-dominant religious entities 
have done well asking for exemptions, e.g.,  the pervasive peyote exemptions, 
yarmulkes (and all other religious headgear,  including for the Sikhs, etc.)  
in the military, Catholics got wine during  Prohibition, Christian Scientists 
have succeeded in obtaining exemptions from  civil and criminal laws in the 
states governing the medical neglect of children,  Catholics have obtained 
exemptions from having to report child abuse when the  information comes from the 
confessional (and even a broader exemption that  relieves all clergy from 
reporting child abuse learned from any source).   Once a law is passed, nothing 
stops a religious entity from asking for an  exemption.
 
In sum, the courts do not need to be in the business of exemptions on  behalf 
of "minority" religions.  They can hold their own in this society in  the 
legislatures, as Justice Scalia's opinion for the Court in Smith  stated.  So the 
argument for RFRA fails on institutional competence and on  any necessity for 
adequate religious liberty.
 
Marci
 
 
 
 
In a message dated 12/9/2005 12:31:57 P.M. Eastern Standard Time,  
VOLOKH at law.ucla.edu writes:

2)   Strict scrutiny in constitutional cases is indeed refusal to
defer to  legislative judgment.  But RFRA, being a statute, asks courts
to  *implement* legislative judgment.  Our other legislative  judgments,
Congress is saying, are made about broad matters that affect  many
people, the overwhelming majority of whom generally have no  religious
objections to the law.  We naturally focus on that majority,  and often
don't even think about the religious minority, which is sometimes  so
tiny when the law is enacted that we're unaware of its presence or  its
objections.  (To shift slightly to a state law matter, how many  state
legislatures that enacted helmet laws really had occasion to think  about
how the laws might affect Sikhs?)  But now we ask courts to  implement
our new legislative judgment, embedded in RFRA, that special  rules --
rules crafted in the first instance by judges, but subject to  revision
by us -- are needed in the rare cases when people have  religious
objections to our laws.  What's wrong with  that?





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