State RFRAs

[Marty Lederman]

Marci Hamilton writes:

> The Maryland rfra was withdrawn because of the combined force of child and
>  spouse abuse opponents, the correctional officials' union, the schools, the
>  municipalities, and the dawning realization that the "least restrictive
> means" test was a new entrant in many contexts.

In Boerne, Kennedy similarly writes that the "least restrictive means" prong
of RFRA went well beyond anything the Court itself had imposed under
Sherbert/Yoder.  Doug Laycock and Marci, in their RLPA testimony, have been at
odds on this point.  Who's right?  Is it a "new entrant"?  What role, in fact,
did "least restrictive means" analysis play in pre-Smith FE law?  Once it is
understood that the "compelling interest" test is "Does the state have a
compelling interest in *denying religious exemptions*?" (rather than "Does the
generally applicable law generally serve compelling state interests?"), is a
"least restrictive means" test in some ways superfluous?  Does it help to
clarify the nature of the compellng interest "test"?

Marty Lederman
(in my personal capacity)