dlaycock at MAIL.LAW.UTEXAS.EDU
Thu Jan 22 16:07:48 PST 1998
If it turns out that nearly all laws have exceptions, then it may
turn out that few laws are of general applicability, and that Smith has
little impact except to vastly complicate the litigation.
I agree that that was not what Scalia hoped to accomplish. But I
deny any claim that the majority had a clear concept of general
applicability in mind, or that it even knew whether the peyote law had
exceptions. Recall that no one had briefed that issue. Recall too that the
Court cited the District Court opinion in Lukumi as an example of a neutral
and generally applicable law. Three years later, they unanimously held that
it fell far short of the minimum requirements of general applicability.
If that objection to most favored nation status is that it will
restore protection for free exercise, that is not an objection about logic
or workability; it is an objection to policy. The government claim that its
policy tolerates secular exceptions but no religious exceptions rarely seems
to me to be a credible claim.
University of Texas Law School
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dlaycock at mail.law.utexas.edu
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