Thomas opinion withdrawn - case goes en banc
aebrownstein at UCDAVIS.EDU
Wed Oct 20 10:46:39 PDT 1999
The Sacramento Bee reported today that the 9th circuit opinion in Thomas v.
Anchorage Equal Rights Commission has been withdrawn and the case is being
heard en banc.
From my perspective, this case may be a classic example of the law of
unintended consequences. I think the court's opinion in Thomas was
extremely damaging to religious liberty legislation in California (and
perhaps nationwide, although that's outside of my area of expertise). I
believe that proponents of RFPA legislation in California were doing a
reasonably effective job containing fears about the consequences of RFPA
for civil rights laws by arguing that the courts could be trusted to fairly
balance religious liberty and civil rights when those two interests were in
conflict. The Thomas decision changed that perception in part by the way it
balanced religious liberty and civil rights concerns but more importantly
because its analysis of what constituted a hybrid claim seemed so far
fetched and unpersuasive. To some political decision makers and their
staff, the Thomas opinion appeared to be a blatant example of result
oriented judicial activism. The result was a loss of credibility in the
courts as the arbiter of religious liberty and civil rights disputes. The
argument that we should pass religious liberty legislation that was not
outcome determinative with regard to conflicts between religious liberty
and civil rights because we could trust the courts with these decisions
rang hollow after Thomas.
Obviously, this single opinion was only one of the reasons for our lack of
success in getting religious liberty legislation adopted in California.
There were many, many other problems. But from one person's anecdotal view
from the trenches, the Thomas decision was a real problem. Even if the
decision is rejected en banc, I think much of the damage done in changed
attitudes will linger.
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