rsmith4 at CAPITAL.EDU
Thu Jan 16 15:32:36 PST 1997
I agree with Doug Laycock that intermediate scrutiny is not an acceptable
means of resolving free exercise problems in the context of laws of general
application. It will, as Doug notes, have the "tendency . . . to reinforce
the pattern of excessive judicial deference to low-level government
interests." Certainly, at least as to religiously compelled matters,
I think such a test would be particularly pernicious, even if it could
be applied in a viable manner. Of course, it might make my "conscience"
argument -- the argument that we should broaden protection to include
conscience -- even more acceptable and it might make my job of trying to
cabin "conscience" much easier. If only intermediate scrutiny, which
would mean so little, is applied, it might not be necessary to try to
confine conscience to forms that are closely analogous to religion.
Incidentally, maybe we should consider breaking religious liberty, and
the protection thereof, into two categories -- one of compulsion or
covenant, which is given heigtened protection, and one of motivation
or practice that is not compelled, which receives intermediate scrutiny.
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