Locke v. Davey and expanded free exercise rights

[Brian Landsberg]

The question posed was whether Catholic Charities were "religion."  If
so, they would have qualified for an exemption from the rule.  

If they are a religion, as they insist, should that affect their
eligibility to participate in state and federal programs?

>>> mstern at ajcongress.org 03/02/2004 6:20:00 AM >>>
Several postings have suggested that any accommodation that imposes a
burden
on third parties is unconstitutional. Why should this be so? A failure
to
accommodate burdens the rights of religious individuals or
institutions. Why
should there be an inflexible rule that where there are unavoidably
burdens
on one party or the other, the burdens must inevitably be borne by the
religious side to the dispute? In this regard it should be noted that
in the
California case, the burden on Catholic Charities was one of principle,
the
burden on employees was merely financial (They had to pay for their
own
contraceptives; Catholic Charities was not firing persons who used
contraceptives). What is it (except ,perhaps ,deference to the
democratic
process) that  makes all seem to assume that even in this context, the
burden on religion must yield to the secular burden?
Marc Stern

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu 
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Sent: Tuesday, March 02, 2004 8:49 AM
To: religionlaw at lists.ucla.edu 
Subject: Re: Locke v. Davey and expanded free exercise rights

I think Alan has made an interesting point here.  The footnote states
that
"at least in some respects, [Washington's] constitution provides
greater
protection of relgious liberties than the Free Exercise Clause." 
First, I
don't think it is unconstitutional for state constitutions, anymore
than the
First Amendment, to require strict scrutiny in certain circumstances,
so
long as there is an  establishment principle at work as well.  The goal
is a
balance of power between church and state, and that can be achieved
via
different calculations.  There is no state that provides strict
scrutiny in
every circumstance under its state constitution, just as there was
never a
rule at the Supreme Court that strict scrutiny applied in every
circumstance.  It is beyond cavil that such a regime is intolerable. 
This
footnote would have worried me had it spoken approvingly of a regime
in
which every law affecting religious entities is subject to strict
scrutiny.

Second, the footnote is speaking to judicially crafted interpretations
of
the free exercise clause.  It does not speak to the proper conditions
for
legislative accommodation.  Proper legislative accommodation requires
a
weighing of the special privilege to avoid the law against the harm to
the
public interest.  The sort of blind accommodation at the base of RFRA
and
RLUIPA made it impossible for members of Congress to engage in this
calculus.  The failure to consider the public interest and to only
focus on
the benefit to religion shows that the law has an improper purpose.

Marci





Sorry for not being clearer, Marci. I'm not focusing on the holding in
Locke but only on the note about expansive free exercise rights under
the
Washington constitution. I thought from some earlier posts quite a
while
back that you believed that religious exemptions that were not limited
to
specific problems violated the Establishment Clause -- and that this
was
one of your concerns with RFRA and RLUIPA. These laws created across
the
board exemptions, not a situation specific exemption. They applied to
too
many different activities and circumstances. (I may have gotten your
position on this wrong. Obviously, if I did the rest of my question
will
not make a lot of sense.)

State constitutions that provide broader and more rigorous protection
for
free exercise rights than the federal constitution seem to me to accept
an
across the board standard for religious exemptions. They typically
apply a
rule that requires some form of rigorous review to laws or individual
assessments that substantially burden the exercise of religion. I
would
assume that if a state statute that creates an across the board
exemption
violates the Establishment Clause, a state constitutional provision
that is
interpreted to apply a similar exemption standard would also violate
the
Establishment Clause.

I read Locke as commenting favorably on the expansive protection
provided
by the Washington constitution's free exercise clause. The Court seemed
to
suggest that play in the joints applied to both free exercise and
establishment clause values and that the fact that the state provided
greater protection under the state's free exercise clause than the
federal
constitution required helped to justify the Court's establishment
clause
holding.

I don't suggest that these state constitutional interpretations are
identical to RFRA or RLUIPA. Merely that they apply broadly to laws or
individual assessments that substantially burden the exercise of
religion.
So my question is -- Do you believe that free exercise provisions in
state
constitutions that provide more rigorous protection than Smith and
apply
generally and broadly violate the Establishment Clause -- and if so,
does
the Court's language in Locke undercut such an argument.

Alan Brownstein
UC Davis