Gov't Attorneys, Negotiation, Standing on Rights

[Michael McConnell]

Marci Hamilton writes:

> I couldn't agree more with Michael McConnell's point that negotiation goes on
> under the shadow of the law.  Where we disagree is on the shape of that shadow
> under Smith.  The more I work with it, the more persuaded I am that Smith may
> be more protective than the pre-Smith case law.

I would be very interested to know the basis of
Marci's persuasion here. I have not done any kind of
empirical study, but my impression is that Smith has not
only cut off claims against laws that most people would
understand to be generally applicable, but that courts have
treated as "generally applicable" various forms of
case-by-case adjudication, so long as there is no overt
discrimination against religion. I would be delighted to
learn that I am wrong. Can Marci give us any examples of
cases in which Smith is more protective than the pre-Smith
case law?
-- Michael McConnell (U of Utah)