DLaycock at mail.law.utexas.edu
Wed Feb 4 16:41:31 PST 2004
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.
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