dlaycock at MAIL.LAW.UTEXAS.EDU
Tue Mar 16 13:59:26 PST 1999
None of Eugene's hypos this round has particularly struck me as a horror
story. If any of them strike others so, it may be in part because, without
focusing on the comparison, Eugene is implicitly inviting us to assume an
open ended religious exception of unlimited scope, and comparing that to a
secular exception that is assumed to be narrow and confined. But Lukumi
talks about secular exceptions that harm the state's interest as much as or
more than the religious exception. If the religious exception is far
broader, it doesn't fit the rationale.
Second, there may be a compelling interest in some secular exceptions.
That's what I told Scalia about what to do if attacked by a bear, in the
oral argument in Lukumi. At least in cases where the excepted and
regulated conduct is the same, the question of whether discrimination
between the excepted and regulated conduct can be justified is a question
of compelling interest, not of general applicability.
Third, Eugene's arguments were all made in Lukumi. The City said that it
had enacted a generally applicable ban on sacrifice, that other killings of
animals were different, and that it was absurd to think that it had to
permit religious killings just because it was unwilling to ban all
killings. Everyone now treats Lukumi as an easy case that therefore
doesn't tell us anything, but it differs only in degree from most of the
other cases we have been arguing about. (And while I hate to be the one to
say this, nearly everyone viewed it very differently before it was decided.
People only thought of it as a special case after the fact.) The core of
the city's argument were that sacrifice and slaughter, sacrifice and
extermination, sacrifice and euthanasia, sacrifice and hunting, etc., were
different categories, so that treatment of one implied nothing about
treatment of the other. The core of Eugene's argument is that religious
use of copyrighted materials and all the permitted uses of copyrighted
materials are different categories, so that treatment of one implies
nothing about treatment of the other. Only *after* the Court rejected that
argument did it become possible to say that sacrifice had been singled out
from nearly every other form of killing.
Differences of degree may ultimately matter, but it cannot be that the
government gets to define all the categories and claim that every law is
generally applicable to whatever it applies to.
We had the same argument in the bankruptcy cases, where debtors are free
to do almost anything they want with their money except give it to a
charity. Nearly every consumer transaction loses money from the
persepctive of the consumer's creditors; almost everything consumers do
does the same harm as giving to charity. (Consumption is gone forever;
consumer durables rapidly depreciate; houses and retirement plans are
exempt in most states. The University and I put 15% into my retirement
plans every month, doing 50% more harm to creditors than a 10% tithe to a
church.) Giving to charity was as singled out as dramatically as
sacrifice. More precisely, giving to charity was the only significant good
faith transaction reclassified with fraudulent transactions. But of course
the United States argued that section 548(a)(2) was generally applicable
within its narrow scope.
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dlaycock at mail.law.utexas.edu
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