Scalia and Sherbert

[Michael McConnell]

Is Sandy Levinson willing to provide a free dinner to anyone who can
provide a coherent explanation of Scalia's distinction of Sherbert in
Smith? (I don't want to make a career out of this, without some form
of recompense.)

But in fact, I think the reconceptualization of Sherbert in Smith is
sensible and may even be superior in logic to the original opinion.
The central point is that the unemployment compensation scheme refers
to "suitable" work and "good reasons"--concepts that require case-by-
case adjudication of a normative sort. While some personal reasons
(Sandy's example of caring for an elderly parent) are not considered
good reasons, other personal reasons (I don't want to change
professions; I don't want to move long distances; I don't want to
take a pay cut) are considered good reasons. We can all agree that
religious reasons must be treated as least as well as powerful
secular reasons, but the hard question is: when the comparison set
consists of some secular reasons that are deemed "good" and other
secular reasons that are deemed "not good enough," which elements in
the set will be used as the benchmark. The Smith opinion says that
"where the State has in place a system of individual exemptions, it
may not refuse to extend that system to cases of 'religious hardship'
without compelling reason." In other words: religion must be treated
as well as the *favored* secular reasons, even if this means it will
be treated better than the *disfavored* secular reasons. I call this,
only half-jokingly, "most favored nation" status for religion.

When and where shall we eat?-- Michael McConnell (U of Utah)