General Rules

[Douglas Laycock]

        RFRA was a general rule, and so was the free exercise clause.  Some
such formulation is the general rule that applies to such cases as
meditations at Devil's Tower and waterless soldiers at Ramadan.

        One of the many objections to RFRA was that it was too general, and
that Congress has to legislate separately for each conflict between
government and a religious practice.  And if Congress does that, it will be
attacked for having legislated exemptions that are too narrow.  Boerne can
be cited for one proposition; Kiryas Joel for the other.  I don't know if
anyone on this list has been inconsistent, but the Court is not on this list
-- so far as I know.

        Some exemptions can be drafted in terms of a practice that multiple
sects practice, so that they are narrow but not sect specific.  But that
drafting process is subject to gerrymanders and manipulation, and litigation
over whether it is general enough.  For sect-specific practices with no
close analogue, describing the practice is sect-specific.  That was part of
the problem, in reverse, in Lukumi.  The only general rule that applies to
such cases as meditations at Devil's Tower and waterless soldiers at Ramadan
is the rule of RFRA -- if government substantially burdens a religious
practice, it must demonstrate that application of the burden to the
individual serves a compelling interest by the least restrictive means.  You
could water down the level of protection, but you cannot very well reduce
the level of generality..


Douglas Laycock
University of Texas Law School
727 E. Dean Page Keeton St.
Austin, TX  78705
        512-471-3275 (voice)
        512-471-6988 (fax)
        dlaycock at mail.law.utexas.edu