Student reprimanded for religious absences

[Volokh, Eugene]

I'm puzzled.  Steve, you say that you aren't wild about Smith -- but these are precisely the arguments that are made in favor of Smith:  Who can tell when an exemption would really dramatically undermine a compelling government interest?  Why courts instead of elected officials?  Or, borrowing from Paul's argument, what do we do when other people raise other claims, which are different but which may not be easy to distinguish in a principled way?
 
It seems to me that the whole point of strict scrutiny in religious freedom cases is that courts rather than elected officials *are* supposed to determine when an exemption would substantially impair the government interest:  That's precisely the point of, for instance, Wisconsin v. Yoder.  Likewise, they are supposed to grant exemptions in cases where they don't substantially impair the interest, and leave hypothetical future cases for a future day, see Sherbert v. Verner; Smith (Blackmun dissenting), unless there's reason to think that the exemption is so tempting that there really will be a flood of claims, or great difficulty with sorting the sincere from the insincere, see Gillette; Lee.
 
Now of course one could reject Smith generally, but say that it's right for K-12 education.  Free Speech Clause jurisprudence, for instance, does treat the government as K-12 educator more favorably than the government as sovereign.  But why exactly would such a regime make sense as to these sorts of claims, where the usual Tinker/Fraser concerns about disruption or vulgarity don't apply?
 
Eugene

	-----Original Message----- 
	From: religionlaw-bounces at lists.ucla.edu on behalf of Steven Jamar 
	Sent: Tue 11/23/2004 11:01 PM 
	To: Law & Religion issues for Law Academics 
	Cc: 
	Subject: Re: Student reprimanded for religious absences
	
	
	Ok. Shifting targets are harder to hit. Who is to decide when substantial impairment kicks in? What authority is there that that is the standard of evaluation? And why courts instead of elected officials? 
	And again, why should someone be allowed to skip school for a ceremony that is not needed or compelled by one's religious beliefs any more than skipping school for hunting or laziness? 

	On Tuesday, November 23, 2004, at 10:51 PM, FRAP428 at aol.com wrote: 


		Eight days out of 180, that's less than the one sick day a month customary for many employed people. Yes, there is other learning that goes on in schools, but is that other learning (aside from that indicated by grades) so concentrated that missing this amount of school is likely to impair it substantially.  Frances Paterson 

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	Prof. Steven D. Jamar vox: 202-806-8017 
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	"I am in Birmingham because injustice is here. . . . Injustice anywhere is a threat to justice everywhere." 

	Martin Luther King, Jr., (1963)