(fwd from Kurt Lash) re: Religious Liberty Protection Act -

[Eugene Volokh]

        I guess this then just returns us to the earlier question:  Is
excluding religion from a regulation of commerce "regulat[ing] religion" and
thus "a law respecting the establishment of religion"?  It seems to me the
answer is no.  This is why I made the perhaps naive textual point in my
earlier post:  Both the Commerce Clause and the Establishment Clause seem to
me to say nothing to prohibit such religious accommodations.

        I'm curious, by the way:  What does Kurt's theory do to religious
exemptions from military service, which I assume existed before 1868?  True,
they would operate under the Raising Armies power, not the Commerce power,
but I take it that this makes no difference.  Would they also have been
unconstitutional "regulations of religion"?  (Please forgive me if this was
asked and answered in the earlier thread on this subject several months
ago.)

> -----Original Message-----
> From: Lash, Kurt [SMTP:klash at LMULAW.LMU.EDU]
> Sent: Thursday, June 25, 1998 10:42 AM
> To:   volokh at mail.law.ucla.edu
> Subject:      Re: (fwd from Kurt Lash) re: Religious Liberty Protection
> Act -
>
> Eugene Volokh asks why the commerce clause cannot serve as a textual
> mandate for [1998] laws regulating religion as an aspect of commerce.
>
> To reiterate: Whatever power Congress had to regulate religion as an
> aspect of commerce in 1789, that power was almost certainly removed by
> the First Amendment (here I rely on both the text of the amendment, the
> history surrounding its adoption, and almost unanimous post adoption
> commentary--my article goes into more detail).  Whatever else the First
> Amendment accomplished, it would have prevented a law like RFPA from
> being passed in 1791.  So, to rely on the commerce clause as a source of
> power to regulate religion in 1998, such power must have been "restored"
> --and the limits of the First Amendment so modified--somewhere along the
> way.
>
> I am not aware of any interpretation of the New Deal as both expanding
> commerce power and dissolving First Amendment restrictions.  Indeed, I
> read footnote 4 to say that New Deal deference does not apply to laws
> that impinge upon a First Amendment liberty.  This was Justice Jackson's
> position in Barnette and the point of his disagreement with Frankfurter
> in Gobitis.  So one cannot rely on the New Deal to justify this use of
> the commerce power unless the meaning of the 1st Amendment has changed by
> 1937--and changed in a particular way that not only removes the
> restriction on federal power to regulate religion in the states, but also
> allows such regulation as an aspect of commerce.
>
> Those who have read my work know that I believe that the original
> restrictions of the 1stA were modified in 1868--but only to the extent
> that Congress at that time was granted the power to enforce incorporated
> liberties.
>
> So my question remains: When and where did Congress get its (current)
> power to regulate religion as an aspect of commerce?
>
>
>
> Kurt Lash
>
> Loyola Law School (Los Angeles)