RFRA and exclusion of antidiscrimination law

[Marci Hamilton]

Doug is absolutely right to point out that I have switched positions on
Smith. In my 1993 article on the theological underpinnings of the
distinction between belief and conduct, I make the case that the Court was
not ever particularly sympathetic to conduct claims.  This, obviously,
documents Justice Scalia's take on the jurisprudence in Smith.  But I also
criticize the Court for its position on the grounds that it is
underprotective.  After reading and rereading Smith and discussions with
various members of the judiciary, I am completely persuaded now that Smith
sowed some seeds that can be harvested if we ever get off the religious
liberty legislation that stands in the way of courts reaching and refining
the Smith doctrine.

Sam Ventola's account is accurate to the extent it is a reasonable
prediction. I do not know in particular, however, which aspects of the
doctrine will bear the most fruit. I imagine the hybrid theory is the weaker
branch and the individualized determination theory is the stronger.

Marci Hamilton


Marci A. Hamilton
Professor of Law
Benjamin N. Cardozo School of Law
55 Fifth Avenue
New York, NY   10003
(212) 790-0215
(212) 790-0205 (fax)
hamilton02+AEA-aol.com