General Rules

[Michael McConnell]

Doug Laycock writes:

>  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..

I don't think RFRA entirely solves the problem, even
putting aside the fact that Devil's Tower probably falls
within Lyng, and outside of RFRA.

RFRA is *so* general that it really provides no guidance.
The judgments of "substantial burden" and "compelling
interest" must be made on a case-by-case basis. Thus, when
the commander decides to excuse Muslim soldiers from
certain exercises during Ramadan, he is not, in fact,
committing himself to any general policy and there is no
guarantee that he would make a similar accommodation for
everyone else.

Moreover, if the only basis for accommodation is RFRA, then
the government commits itself to the proposition that it
*must* make the accommodation. Governments are reluctant to
do that. It is bad policy to insist that all accommodations
are mandatory accommodations, wihether under RFRA or the
First Amendment, because it makes the government into an
adversary instead of a cooperative party.
-- Michael McConnell (U of Utah)