Close Shave for RFRA . . . until next time?

[Truthserum]

Marty raises good points, to which I make these responses:

<<1.  Isn't the "severability" issue that Judge Randolph raises a
no-brainer?  Is there *any* reason to think that Congress would have wanted
to cease  application of RFRA to the federal government in the event the
statute's  application to the states was invalidated?  And even assuming
arguendo there had been, hasn't all possible doubt on that score been erased
by Congress's amendments to RFRA last year in RLUIPA?>>

Yes.  But Judge Randolph displayed, while questioning the AUSA during the
oral argument, what I considered to be extraordinary hostility about the
Government's failure to argue for, or at least concede to him, the
all-inclusive invalidation of RFRA by Boerne.  He demanded to know, for
example, whether Main Justice had conducted a review of the validity of RFRA
as applied to the federal government following the decision of the Dickerson
case (the opinion in Dickerson makes a sidling reference to Boerne).  And he
expressed serious exasperation when the AUSA could not respond on that
point.  I had the impression rather firmly fixed that Judge Randolph must be
a poker partner with my judicial hero, Justice Scalia.

<<2.  Mr. Henderson is absolutely correct to criticize Judge Randolph's
opinion for relying on a distinction between religious motivation and
religious compulsion, or on notions of religious "centrality."  Whatever
doubts there may have been on that question should have been put to rest by
RLUIPA's amendments to RFRA, which specified that for purposes of the two
acts, "any exercise of religion" is covered, "whether or not compelled by,
or central to, a system of religious belief."  See 42 U.S.C. 2000bb-2(4),
2000cc-5(7)(A).>>

A point to which the panel's attention could have been brought, if the issue
had been before the court prior to argument.  A point to which the panel's
attention could have been brought if the court invited briefing subsequent
to argument, once it had decided to focus on it.  A point to which the
court's attention may now have to be brought by way of petition for
rehearing.

<<3.  But despite that error in the opinion, I find it hard to imagine how
the Park Service regulation here -- banning the sale of all t-shirts on the
National Mall -- could be said to "substantially burden" plaintiffs'
religious exercise.  Even assuming, as they allege, that plaintiffs have "a
religious vocation to communicate by all available means the message of the
Gospel," nevertheless the Park Service reg merely restricts them from doing
so in one discrete, and quite limited, manner.  As the opinion notes,
"[b]ecause the Park Service's ban on sales on the Mall is at most a
restriction on one of a multitude of means, it is not a substantial burden
on their vocation. Plaintiffs can still distribute t-shirts for free on the
Mall, or sell them on streets surrounding the Mall. See Weir v. Nix, 114
F.3d 817 (8th Cir. 1997) (considering alternatives in determining whether
burden was "substantial"); Bryant, 46 F.3d 948 (no "substantial burden"
where alternatives were available)."   I would add that plaintiffs remain
free to communicate the message of the Gospel on the Mall in other
significant ways that one would suspect are much more effective than selling
t--shirts -- such as, for instance, by preaching it, or by wearing the
t-shirts in question. >>

I take your point, but disagree with it.  It remains for the courts to
decide whether it is a substantial burden.  In any event, you put your
finger on yet another point of error committed by the judge.  The court
decided a question of statutory construction, the scope of RFRA, when the
construction was (if you are correct) unnecessary to the decision of the
matter.  He should have said, under your approach, "assuming that RFRA
applies to conduct motivated by not mandated by religion, the claim fails
because the regulation does not impose a substantial burden on the
practice."

<<4.  In any event, plaintiffs would read RFRA to give them a right to
engage in religious speech in a context where others may not engage in
analogous or comparable nonreligious speech.  Such a preference for
religious speech over nonreligious speech would violate the Free Speech
Clause, as well as the Establishment Clause.  See, e.g.; Heffron; ACLU v.
Allegheny; Prince v. Massachusetts; Scalia's opinion in Pinette, 515 U.S. at
766.  That's why the Senate and House Reports on RFRA indicate that RFRA
should not be construed to provide any preferences to religious expression
with respect to reasonable time, place and manner restrictions on speech.>>

Well, this presents an interesting question.  Assume, now, with me, that we
had made the prima facie showing (a substantial burden).  The burden shifts,
under RFRA, to the Government.  The Government must show a compelling
government interest and that the least restrictive means available have been
employed to serve that interest.  Here, the Government contended its duty to
treat all speakers (would be t-shirt sellers) equally prohibited it from
giving special privileges to the religiously motivated seller.  And justices
of the Supreme Court have adverted to this very issue of the interplay
between the equal protection clause and claims of special right under the
free exercise clause.  But, I can, here at least, concede for purposes of
argument that equality of treatment is a compelling government interest and
still prevail.  Why?  Obviously, the final step of analysis is to inquire
about whether the least restrictive means have been selected to serve the
purpose.  Here, beyond doubt, the most restrictive means have been selected.
In fact, consideration of any less restrictive means was never part of the
National Park Service's approach to the issue.

Jim "Since when are courts supposed to use steamrollers to analyze
statutes?" Henderson

Senior Counsel

ACLJ

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