"Courts' institutional incompetence"
Hamilton02 at aol.com
Hamilton02 at aol.com
Sat Dec 10 06:37:26 PST 2005
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.
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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