RFRA and exclusion of antidiscrimination law

[Sanford Levinson]

Sam Ventola writes:


>There are at least three solid reasons why the First
>Amendment as interpreted in Smith would prohibit employment
>discrimination claims to ministerial positions.
>
>First, the language of Smith makes clear that it is not
>intended to disturb prior precedents precluding government
>interference with internal Church governance, and
>specifically the right to select clergy.
>
But cases aren't self-interpreting.  There are all sorts of cases in which
people insist that the principle announced in case X doesn't undo what had
earlier been decided.  But, of course, when case Z comes along, the
majority announces that the only honest way to read the principle announced
in X is in fact to undo the earlier cases.  I presume that everyone agrees
that the broad principle enunciated in Smith covers *everything.*  So any
exceptions are basically the result of judicial grace and, in some sense,
the willingness to countenance "unprincipledness" (but, then, perhaps
that's just another way of saying "adhere to precedent").

>Second, the language of Smith indicates that its "neutral
>principles" exception to the compelling interest test
>applies only to situations involving government regulation
>which is absolute and which does not involve case-by-case
>balancing.  An employment case, of course, calls upon a jury
>to judge the motivations of the employer and whether its
>reasons for its actions are "pretextual."  This is precisely
>the type of weighing and balancing against religion which
>Smith itself seeks to avoid.

This is a clever argument, and I think that discussion about a year ago
focused on the fact that almost every legal event can be turned into
"case-by-case balancing," because there are in fact so few truly
across-the-board, no exception ever, statutes or laws (especially as
administered).  (I take it that Eugene was saying much the same thing in
his last posting.)

Sandy