(Fwd from Marty Lederman)

[Volokh, Eugene]

Life imitates Religionlaw:

Many who have been following this thread will be interested to note that
the defintiion of "religious exercise" in the new proposed RLPA was
changed in a substitute amendment adopted by the House Subcommittee
yesterday.  The proposed RLPA previously had defined "religious
exercise" as "an act or refusal to act that is substantially motivated
by a religious belief, whether or not the act or refusal is compulsory
or central to a larger system of religious belief."  The new definition,
which starts from the intentionally ambiguous RFRA definition and adds
two clarifications, is:  "conduct that constitutes the exercise of
religion under the first amendment to the Constitution; however, [1]
such conduct need not be compelled by, or central to, a system of
religious belief; [2] the use, building or converting of real property
for religious exercise shall itself be considered religious exercise of
the person or entities that use or intend to use the property for
religious exercise."  RLPA also would amend RFRA to include this same
definition for federal law/government cases.

This eliminates the difficulties inherent in a "substantially motivated"
test, thereby alleviating some of Pam Harris's concerns.  It also
resolves the "centrality" and "compelled vs. motivated" questions that
dogged RFRA litigation.  Furthermore, it clarifies that church-building
is religious exercise (whether or not such conduct is motivated by
religious "belief").  On the other hand, the basic test is still
"whatever `religious exercise' means under the First Amendment."  As
this thread has indicated, that's not much guidance, unfortunately.  As
Professor Harris notes, it can easily "invite ad hoc judicial limits
that may do serious harm."  Nevertheless, at least the courts will have
more guidance than they did under Sherbert/Yoder and RFRA.

Congress also has been engrossed in something resembling our recent
"commerce clause regulation of religion" thread:  Apparently in response
to testimony of Mike Farris -- who expressed grave reservations about
Congress's power to codify the Sherbert test pursuant to its Commerce
power where the burden on religion "affects" interstate commerce -- the
Subcommittee also has deleted the Commerce Clause provision of RLPA.
According to Chairman Canady, this was done reluctantly, in light of
political realities.  (I will let others closer to the situation explain
the politics and/or Mike Farris's theory.).

The Committee also made several other changes, for purposes of
clarification and in anticipation of the inevitable constitutional
challenges.

Marty Lederman
(in my personal capacity)


Pam Harris writes:

[A] definition of religious exercise expansive enough to cover
all manifestations of religiously motivated ethical behavior will
have to be very expansive indeed.  We end up with bus-ridership
not only to services, but also to the abortion clinic (or, once
more removed, to the post office to mail a letter of protest to a
pro-choice official) as "religious exercise" -- all motivated by
a sincere religious commitment to ending abortion.  Some cases
like this will wash out on compelling interest, as Alan points
out; but some won't.  (Query on the bus route cancellation --
obviously a substantial burden on bus ridership, now defined as
religious exercise; likely difficult to defend under any serious
measuring of compelling interests at the margin.)

My concern here obviously isn't for government prerogatives in
running bus routes.  It's that a definition of religious exercise
this broad will invite, and seem almost to require, judges to act
on their intuitions (and here I think I'm echoing Doug Laycock)
that all religiously motivated behavior simply can't be offered
this kind of protection.  What I'm most uncomfortable with is
leaving the inevitable lines to be drawn by judicial intuition --
intutitions that are likely to diverge, to reflect higher comfort
levels with more familiar manifestations of religiously motivated
ethical behavior, and, possibly, to lead judges to avoid the
difficult matter of refining the "religiously motivated"
principle altogether by jumping to a watered-down version of
compelling interest that will infect the rest of the case law, as
well.

As Alan already has illustrated, formulating a principle that
will limit the scope of "religious exercise" is very difficult.
But I think that we need one -- more specifically, that new RFRA-
like statutes need one -- because the alternative is to invite
ad hoc judicial limits that may do serious harm.