Prof. Steven D. Jamar, Dir. LRW Program
sjamar at LAW.HOWARD.EDU
Fri Jan 23 10:49:20 PST 1998
What a mess we all can make of a simple, innocuous, even fair-sounding phrase.
So the questions I have now are these: Are we really the ones who haven't a
clue about interpretation in a straightforward, common sense fashion? Or is
the Smith test really that obscure? Is the Smith test and result any worse or
better, as a test goes, than compelling interest or other estwhile tests of the
limits of government action affecting religious practices?
I am not suggesting we throw our hands up and abandon critiquing tests and
court opinions or that we quit trying to formulate workable tests. But I am
suggesting that we can use words to articulate to some extent what the limits
are; that those words will never be fully sufficiently understood or definable
to be applied in a straight syllogistic fashion to hard cases; and that the
focus on the specific words of specific tests can lead to all sorts of
absurdities when taken to extremes or when treated as philosophers (or worse,
logicians) would treat the words rather than as practical people, practical
lawyers and judges must perforce treat them.
Generally applicable cannot mean, and I don't think Scalia is so stupid as to
have intended it to mean, that there are no exceptions. Nor do I think that
the court meant to say that as long as a law doesn't target religion
(determined either by its terms or by its legislative history context) it can
not have any free exercise implications or that free exercise will never trump
such a law.
For example, a law that requires all school children to say the pledge of
allegiance cannot now be said to require JW's to do so. Or can it? Do we on
this list really think the court would go that far? The law would be "neutral"
and "generally applicable." But this cannot be the full extent of the
analysis. Or does anyone really think that accommodation is that fully gone,
that the free exercise is that fully discounted?
But before we agree with Rick Duncan that the free execise clause has been
written out of the constitution by Smith, let us remember that there remains a
huge amount of religious exercise which cannot be targeted by legislatures
because of it. The state cannot ban people from getting together, building
churches, creating new sects, advocating religious beliefs, practicing
"bizarre" rituals (praying 5 times a day, wearing hats indoors, eating the body
and blood of the namesake of the religion, animal sacrifice, calling the
corners, communing with nature, etc., etc.). All these and more are protected
by free exercise.
In addition, anti-discrimination statutes in general protect free execise by
reducing the ability of employers and others from excluding some whose
religious exercises differ from the employers' practices and expectations. And
same with housing and other public spheres.
Would Rick Duncan be happy if Mrs. Smith could discriminate against gays in
California, but then the millions of Mrs. Smiths could in turn be discriminated
against for jobs, for access to restaurants, for renting, for buying houses?
Should the majority who are so uncomfortable around evangelicals be legally
able to exclude them from participation in society? Maybe that is Rick's
libertarian kingdom of god on earth, but it certainly is not mine.
Is any law absolutely neutral? Of course not. Is any law absolutely pure in
its "general applicability" in a strictly logical or even philosophical sense.
Surely not. Does this render these two concepts, as concepts, useless in
analysis? In my judgment no. The fact that they only point a direction and
form a framework for inquiry does not mean that they are useless. Indeed, in
this area of the law in particular, I think we are better off using principles
and concepts rather than bright line tests in general. Certainly for some
matters guidelines and brightlines have been and can be established, but for
those endless permutations of reality which create new situations, I think some
fuzziness and fluidity is in order.
Steven D. Jamar
Professor of Law
Director, Legal Research & Writing Program
Howard University School of Law
2900 Van Ness Street N.W.
Washington, D.C. 20008
President, Legal Writing Institute
vox: 202-806-8017 fax: 202-806-8428
email: sjamar at law.howard.edu
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