California RFRA and discrimination exemption

[Eugene Volokh]

    I agree that the discrimination exemption seems a bit troublesome
under Thornton v. Caldor:  If an exemption scheme that specially
*favors* a particular kind of practice over all others is
unconstitutional, then why not an exemption scheme that specially
*disfavors* a particular kind of practice?  But I think this shows
more about the flaws of Thornton than it does about the flaws of Cal
RFRA.

    Rick's "non-neutrality" criticism strikes me as less forceful.
The scheme is not hostile to religious practices vis-a-vis identical
secular practices, the problem in Lukumi Babalu.  In fact, it
mostly *prefers* religious practices over secular practices, but
is entirely *neutral* as to discriminators, treating them the same
whether their motivation is religious or secular.

    The discrimination is among kinds of practices -- certain
practices are not given exemptions, but others are.  And this seems
to me quite sensible:  The legislature has essentially concluded that
antidiscrimination laws *are* important enough to justify general
enforcement (perhaps because they vindicate something that the
legislature sees, rightly or wrongly, as a competing human
right), regardless of what courts might think.  For other laws, the
legislature either doesn't feel as strongly, or doesn't have as much
evidence that courts might reach a different conclusion.  Eminently
sensible behavior by the legislature, behavior that's not hostile to
religion, but is rather hostile to a *practice* -- discrimination --
whether it's engaged in for religious or secular reasons.

    And I say this as someone who thinks that laws banning housing
discrimination based on marital status are immoral impositions on
landlords' liberty.

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                                              Eugene Volokh
                                              UCLA Law School
                                              (310) 206-3926
                                              fax (310) 206-7010