California RFRA

[Doug Laycock]

        Eugene is certainly right that someone must decide which religious
practices can be protected and which cannot be protected.  If the Free
Exercise Clause does not require judicially administered exemptions of its
own force, then Eugene is also right to say that it is not obvious why the
courts can create exceptions and the legislature cannot, or to put it
another way, it is not obvious why the legislature must enact a universal
RFRA without exceptions or no RFRA at all.  Anyone taking that position must
offer a justification.  They must also think about its political expediency.

        In terms of positive law, this all turns on the interpretation of
Smith and Lukumi, which remain open to a range of readings.  The requirement
of neutrality and general applicability must at least mean that there can be
no facial discrimination between sects or against religious motivation, and
Lukumi at least holds that there can be no gerrymanders that discriminate
non-facially between sects or against religious motivation.

        It is a normatively attractive understanding of a requirement of
neutrality and general applicability that the choice of which religious
practices to protect and which not to protect must be based on some
standard.   Perhaps the legislature can apply its own level of scrutiny, but
it is troubling if the legislature can just pick and choose on purely
discretionary political grounds.  If we find that Mormon practices are
accommodated in Utah, evangelical practices are accommodated in Alabama,
Jewish practices are accommodated in New York, and Catholic practices are
accommodated in Rhode Island, we should be troubled, however facially
neutral the provisions.  In general, courts are better than legislatures at
applying a consistent standard, although neither branch is very good.

        If neutrality and general applicability requires that a consistent
standard be applied to decisions about what religious practices not to
protect, then it should at least be a judicially reviewable question whether
the legislature has applied such a consistent standard.  My guess is that
the previous sentence is not especially controversial, but that the real
disagreement would be over the level of scrutiny to be applied.  Rational
basis would strike down only the most egregious and obvious discrimination;
the strictest scrutiny of legislative decisions would approach the
equivalent of commiting the whole question of exceptions to the judiciary in
the first instance.


Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
        512-471-3275 (voice)
        512-471-6988 (fax)
        dlaycock at mail.law.utexas.edu