State RFRA Conf

[Marci Hamilton]

First, let me say that I never intended to impugn the quality of  any of the academic participants in the Council's conference.  They are first-rate.  I fear I began this debate with a less than diplomatic tilt.

Having said that, I feel I should respond to Nicholas Miller's defense of his conference.  His distinction between whether rfras are a good idea or bad idea and their effects simply does not hold water.  Their impacts speak
to both constitutionality but perhaps more importantly to policy.  The lineup thus far is more likely to minimize the real impacts of such legislation than a lineup that is composed of those who are fans and opponents of rfras in general. This seems to me to be a political fact.

Moreover, I doubt that solely legal academics are capable of fully exploring the impacts of rfras/rlpa.  Nicholas's gathering does not include any of the groups that truly understand such impact, like the ACLU, the Amer. Assn. of Pediatrics, CHILD Inc., National League of Cities (or any of the other other groups whose letters are posted on my website).

It was my experience when I testified at the hearings in June before the House and the Senate committees that RFRA/RLPA's proponents represented to Congress that such laws have much less impact on a wide variety of concerns than they really do.  Moreover, their proponents tend to downplay the fact that such legislation empowers fringe religions as much as mainstream ones. The Aryan Brotherhood gets the same legal weapon to trump laws for the general welfare as do Presbyterians.  So do the Satanists, Luciferians, and Wiccans. Marc Stern testified for the record before the House that religions do not discriminate when we all know that the Christian Legal Society (and others) are in this ballgame because they *want* to trump the anti-discrimination laws and that discrimination is the raison d'etre for many of the prison religions.

As I said before, this conference *is* a step in the right direction, because we have proponents of such legislation addressing the impact of it. There was a time, as recently as June, when such proponents were content to paper over such impacts.  I worry, however, that such a one-sided conference, timed as it is with the likely reintroduction of RLPA by both Houses in Jan/Feb, will lead members of Congress to believe that full
inquiry has been achieved.

One can hope perhaps that even a one-sided discussion will lead the Coalition for the Free Exercise of Religion (through their legal academic advisors) to persuade Sen. Hatch and Rep. Canady to hold hearings on RLPA's likely impact (or any of the state legislatures to do the same).  This seems to me to be the responsible thing to do regardless of one's support or dissent from the rfra/rlpa formulation.  To date, the Coalition has not
urged such hearings and therefore Hatch and Canady have not been inclined to investigate these avenues of concern.

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 at aol.com
www.marcihamilton.com

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