California RFRA

[Eugene Volokh]

    Doug makes an extremely appealing argument, one that might well
be right.  Certainly it *is* normatively attractive to ferret out
hidden legislative religious hostilities, or even just general
unfairnesses of treatment.  To take an example, is it fair that
Rastafarians don't get an exemption for marijuana but members of some
American Indian religions get an exemption for peyote?  Maybe it is,
but maybe not.  We'd like to be able to tell whether two practices
are sufficiently alike, in their moral and practical effects, that
they should, in fairness, be treated alike.

    My concern, though, is that this inquiry may resist judicial
administration, precisely because it calls for such hard moral and
practical choices.  One piece of evidence for this is that this is
the very inquiry that courts have abandoned under a substantive due
process / non-fundamental-rights non-suspect-class equal protection
analysis.  The conventional wisdom is that courts can't in a
principled way decide that "opticians are just like optometrists, and
should therefore be treated equally," or that "the practice of
selling whole milk and the practice of selling filled milk are
sufficiently alike that so long as the former is tolerated, the
latter shouldn't be banned."  Harder still would be to decide whether
housing discrimination is like, let's say, violation of zoning laws.

    Now part of the reason for this might be that we think there's no
good normative reason for courts to even try to make such decisions
in most cases; maybe the presence of a normative reason -- prevention
of covert religious discrimination -- justifies such an effort.  But
I think a bit part of the reason, perhaps the biggest, is that courts
have a very hard time making such decisions in any principled way,
even when a good normative reason is present.

    If there were a proposed test on the table (and I think true
strict scrutiny wouldn't really work), then we might consider it and
perhaps be persuaded that it *will* do the job.  And then, who knows,
perhaps we might decide that it should be applied to equal protection
more generally.  But for the reasons I give above, I'm not sure there
is such a test.


Doug Laycock writes:

>         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.


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