Smith and Neutrality

[Eugene Volokh]

    Rick's wine hypo strikes me as considerably different from Cal-
RFRA.

    My view is that discrimination among religious groups as to a
particular exemption requires strict scrutiny (Larson), as does
discrimination against religiously motivated conduct (Lukumi Babalu).
Allowing an established religious group to consume wine as parts of
its sacraments, but forbidding an individual who feels a similar
religious need to consume wine as part of his sacrments, strikes me
as discrimination among religious groups.  Thomas v. Emp. Bd. seems
to support this view, concluding as it did that beliefs of a
"religion of one" are as entitled to protecting as beliefs of a
religious group.  (Thomas's specific holding as to the requirement for
exemptions doesn't survive Smith, at least as a general matter
outside unemployment comp and similar contexts, but the principle for
which I rely on it here still strikes me as sound.)

    Cal-RFRA involves a distinction between very different kids of
religious practices -- discrimination on one side and other practices
on the other.  Whether that's permissible or not, it strikes me as
quite different from discrimination among two different sorts of
religious groups (Catholics who feel a religious need to drink wine in
their standard practices, and particular subtypes of Catholics who
feel a religious need to drink wine in their idiosyncratic practices)
as to the same practice.


Rick Duncan writes:

> Chip may be right that the Cal-RFRA exemption does not burden free
> exercise under the First Amendment, but I think he is wrong when he
> argues that the law is neutral. Chip seems to think that a law flunks
> neutrality under Smith-Hialeah only if it singles out a particular
> religious denomination for unfavored treatment. Certainly, such a law
> (e.g. Prohibition with an exemption for Catholics only) is not
> neutral. But suppose Prohibition is enacted with an exception for
> religious *institutions* to use wine in religious services. Can the
> Prohibition law be enforced against an *individual* who uses wine at
> home for Holy Communion with his family? The individual will argue
> that the law  is not religiously neutral, because some sacramental
> wine is allowed (at services conducted by religious institutions)
> while the law prohibits individual home use of sacramental wine for
> religious purposes. Is this argument hopeless because the law does not
> single out a particular religious denomination for discriminatory
> treatment?
>
> The Cal-RFRA exemption is such a law--it says all religious conduct is
> protected by a religious freedom standard *except* one category of
> religious practices that are left unprotected. To Chip, this law is
> a neutral and generally applicable protection of religious freedom. To
> me, it singles out one class of *religious* conduct and leaves it
> unprotected by the general regime of free exercise under the statute
> and subject to civil sanctions and even criminal punishment. This is
> certainly not a "hopeless" argument under Smith/Hialeah.
> --
>                    ----------
>              Rick Duncan (rduncan at unlinfo.unl.edu)
>
> "Godlessness is the first step to the gulag." --Solzhenitsyn
>

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