Scalia and Sherbert

[tom berg]

I don't know if this casts any doubt on Michael McC.'s
dinner, but .... As Doug Laycock pointed out in his
article in the Supreme Court Review in 1990, the
"individualized exemption" exception to Smith, if taken
seriously (like a version of "most favored nation"
status), would swallow up Smith and almost always require
strict scrutiny.  There is always some exemption in a
statutory scheme somewhere, reflecting a judgment that
the interest in question is important (or politically
powerful) enough to be exempted. Title VII and other
antidiscrimination laws exempt small businesses because
(purportedly because) the burden of regulation on them is
disproportionately great; how then, if there is "MFN"
status for religious interests, can a court or agency
reject (or at least, how can it apply anything other than
strict scrutiny to) a church agency's sincere claim that
it has a religious interest in discriminating in
employment (on the basis of sex, sexual orientation,
etc.)?

-- Tom Berg, Cumberland Law School, Samford University

On Tue, 11 Feb 1997 10:00:08 MST Michael McConnell
<MICHAEL.MCCONNELL at LAW.UTAH.EDU> wrote:


> 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)

----------------------
tom berg
tcberg at samford.edu