Straws in Wind

[Douglas Laycock]

        I will be leaving on a long-planned vacation and will not be
participating in the list's debates on Boerne and other cases.  I was out of
town on Friday and came back to 86 messages, so I think I will have to turn
you all off while I'm gone.   Some thoughts on yesterday's flow:

        1.  Does anyone remember the last time the Court struck down three
unrelated Acts of Congress in the same week?  With only one of the decisions
based on a specific clause stating a constitutional right?  If Tom Delay is
really looking for activist judges, he should look across the street.

        2.  The GVR in Crystal was inevitable whatever they think about
federal applications.  Nothing in the reasoning of the opinion jeopardizes
federal applications.

        3.  The next round of litigation will not be about overruling Smith,
but about the meaning of neutral and generally applicable.   State and local
government will argue that "generally applicable" means "not motivated by
conscious hostility to the burdened church or religious practice."  Churches
and other claimants will argue that "generally applicable" means "applying
generally to the whole population without exceptions or exclusions."

        4.  Some state legislatures and state supreme courts will provide
state-law protection; some will not.

        5.  Congress can still legislate with respect to many applications
of RFRA if it is careful and finds the relevant facts.  It probably cannot
legislate with respect to all applications except pursuant to the treaty power.

        6.  The treaty power argument works.   The relevant covenant has
more explicit language about exemptions than the free exercise clause; as I
recall, the standard of justification is "necessary" rather than
"compelling."  Missouri v. Holland is clear that legislation implementing
treaties can be outside the scope of any other power.

       7.   The problem with federal applications of RFRA, and with the
treaty power, is whether the Court will not just make up something new.  It
could overrule or reinterpret Missouri v. Holland in the same conclusory way
it "distinguished" all the judicial and legislative precedent on the
enforcement power.  E.g., we think the legislation in Missouri v. Holland
was necessary to implement the treaty, and we think this legislation isn't
necessary to implement the treaty.

        8.  Marci and others will take exception to point 7, and they were
obviously much more attuned to the Court's mood than I was.   But the Court
ran roughshod over a lot of law; recall that appellate courts passing on the
validity of RFRA were 6-0 for validity, including substantial opinions by
well-respected conservative judges -- Posner, Higginbotham, Buckley.  It was
not just the RFRA Coalition that believed past decisions and practice
strongly supported Congressional power here.

        9.  The only discussion of any substance about how other statutes
were different is that the 1965 Voting Rights Act responded to a long
history of egregious abuses.  And so it did.  But that explanation is not
available for the 1982 Voting Rights Act, for disparate impact rules about
civil service exams, for the Pregnancy Discrimination Act, for Congressional
power to define the badges and incidents of slavery, and on and on.

       10.  The Ninth Circuit just held that prisoners have a right to
Kosher meals if it is easy to provide them, and they found that it was.
This is a free exercise holding under O'Lone v. Shabazz, which requires a
reasonable relationship to a legitmate penological objective, or something
like that.  Smith is not cited; they just assumed that O'Lone was still good
law in prison cases.  So in the 9th Circuit at the moment, the free exercise
standard for prisoners is more protective than the free exercise standard
for free citizens.  Ashelman v. Wawrzaszek, 111 F.3d 674 (9th Cir. 1997).