Axson-Flynn

[Douglas Laycock]

         I haven't had a chance to read it yet.  But a spelled out 
categorical exception is a highly efficient way of discriminating in favor 
of legitimate secular interests and ignoring religious interests.  An 
entity that grants secular exceptions wholesale should have at least as 
much obligation to accommodate religious interests as one that grants 
secular exceptions retail.  Lukumi relied heavily on categorical exceptions 
that exempted large defined classes of secular reasons for killing 
animals.  The Third Circuit's opinion in Fraternal Order of Police v. City 
of Newark relies on a categorical exception for medical reasons not to shave.

         No one argued secular exceptions in Smith; that wasn't the law 
yet.  But the medical exception in the drug laws does not apply to peyote, 
which has no recognized medical uses.  And if a medical exception for say, 
morphine, does not justify a recreational exception for morphine, it is 
because the government's interest in recreational use of morphine is 
compellingly different from its interest in medical use of morphine.  It is 
not because the rule is generally applicable.

         At the oral argument in Lukumi, Scalia and I had this very 
argument about an exception for shooting a bear in self defense.

At 03:29 PM 2/4/2004 -0700, Denversam samuelv wrote:
>It also has a good discussion on the limits of the "individualized 
>exceptions" doctrine.  If there is a spelled-out, objectively determined 
>exception, that doesn't involve the case-by-case inquiry involved in 
>"individualized exceptions."  After all, the controlled substances act at 
>issue in Smith itself had an exception for prescribed medication.
>
>
>Sam Ventola
>Denver, Colorado
>
>Douglas Laycock

University of Texas Law School
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