dlaycock at MAIL.LAW.UTEXAS.EDU
Wed Jan 14 16:26:51 PST 1998
The question Rick Duncan poses is whether RFRA exceptions have to be
justified. An explicit suttee exception would be upheld under anyone's
understanding of the compelling interest test.
A nondiscrimination exception covers a huge range of cases. I do
not believe that bans on marital status housing discrimination serve a
compelling interest; others disagree. I may get more agreement for the
proposition that requiring Catholics to ordain women does not serve a
compelling interest, but I know there are people who disagree even with
that. Both of these potential applications would seem to follow from the
exception for nondiscrimination statutes.
If a RFRA law is neutral and generally applicable despite the
presence of exceptions, then the exceptions need never be justified and the
courts will never pass on whether the exceptions serve compelling interests.
This is a special case of the standard argument under Smith and Lukumi,
which is whether a law's exceptions are neutral and generally applicable.
The state argues that every law is generally applicable to whatever it
applies to; the religious claimant argues that the exceptions are part of a
larger relevant category that is not generally applicable unless it includes
the religious claim.
Here, the state is in effect saying that "antidiscrimination law" is
a neutral and generally applicable category. Rick is in effect saying that
the relevant category for a state RFRA is religious practices, and any
exceptions carved out of that general category must serve a compelling
interest. In between these two positions are imaginable exceptions that we
would surely all find not-neutral and not generally applicable: e.g., no
claims by Catholics, or no challenges to any regulation of unleavened bread.
What about no challenge to any regulation of headwear? There is no escaping
When he introduced RFRA, Steve Solarz said it would be better to do
nothing, and to await the appointment of more enlightened Justices, than to
start picking and choosing among the religious practices of the American
people and codify a list of the ones Congress approved of sufficiently to
protect. California has not gone that far, but it has started down that path.
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dlaycock at mail.law.utexas.edu
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