Intermediate Scrutiny

[tom berg]

On Thu, 16 Jan 1997 16:18:20 -0500 Sanford Levinson
<levinson at BU.EDU> wrote:


> There seems to be a consensus developing that RFRA would have been a far
> better statute had it adopted the formula "intermediate level of scrutiny."
> For better or worse, that's not what it says.  How important is this fact to
> the people on this list?
>
> Sandy Levinson
>
> >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.
> >
> >rod smith
> >capital university
> >
> >
>
> ------------------------
> Sanford Levinson
> B.U. Law School
> EMail: levinson at bu.edu
> ------------------------
When Laycock and McConnell disagree on something, I'm not
sure I'd say there's a consensus on this list.  But in
any event, I think that courts will always, and in fact
probably should, approach claims for a religion-specific
exemption differently from the way they approach the
paradigm cases of the "compelling interest" test (which
include viewpoint discrimination, discrimination against
religion, and racial discrimination).  In all those
situations, the fact that the action is discriminatory
means that it is relatively easy to fault the government
for not pursuing its asserted interest "across the
board":  and indeed, a great many "compelling interest"
cases (like Lukumi) are decided that way.  The courts
never get around to deciding the  ultimate importance of
the government interest; they focus rather on the lack of
tailoring or "fit" between the purpose and the
classification.  Or to think about it another way, the
asserted interest is undercut by the lack of "fit,"
without the court having to decide the importance of the
interest in a direct, substantive sense.

  Free exercise exemption cases are harder because there
(presumably) the government has pursued its interest
across the board.  Since the assertion of purpose can't
be undercut by showing that the government acted
selectively, courts have to decide more directly what's
an important interest and what's not; and while I do not
think that is an impossible task, it's more contested
than the analysis of means-end "fit."

   Of course, it is sometimes possible to avoid directly
deciding the "how important?" question -- because usually
exempting a few believers will not undermine the
government's purpose overall.  Yoder can be read that
way.  But, as Doug Laycock admits, you do have to be
worried (though not overly so) that the availability of
an exemption will encourage so many other claims as to
produce a "compelling" problem.

   For these reasons, my ideal standard would be
something closer to intermediate scrutiny.  But I support
the "compelling interest" test in the real world for
strategic reasons. Courts need to be yanked by the neck
by a phrase like compelling interest to counteract their
instinctive tendency to dismiss free exercise claims.  (I
apologize for mixing metaphors.)  Thus the difference
between the two tests could matter.  By the way, with
O'Connor fudging left and right on the meaning of
"compelling interest" in redistricting cases, I think it
is unfair to blame RFRA for any "watering down" of the
compelling interest test.

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