Religion-only accommodation question
apicarello at becketfund.org
Fri Apr 15 14:54:58 PDT 2005
I notice that your response contains no reference to Smith that might support your distinction between the "blind" accommodations of religion by "cipher" legislatures, and whatever accommodations you might support. No citations to its language, "underlying political theory," or any rule of decision (principled, administrable or otherwise).
The key point is that Smith is, among other things, very pro-deference to legislatures. Consistent with that, it is also very pro-deference to legislative accommodations of religious exercise. This is not just a clear implication of its reasoning, it is explicit in the opinion. 494 US at 890. The only limitation on legislative accommodations I can find in Smith is that they must be "nondiscriminatory," id., which squares with the Court's typically greater suspicion of denomination-specific accommodations (eg, Kiryas Joel), and which militates in favor of broader ("blinder"?) accommodations. So maybe you can find support for your Est Cls argument against RFRA / RLUIPA somewhere else, but not in Smith, which cuts strongly the other way.
And whether supported by Smith or not, I think the rhetoric of judicial deference to legislatures hangs a bit in tension with occasional, standardless maligning of legislatures as "ciphers." And whether internally consistent or not, opposing all judicial and (at least) most legislative religious exemptions certainly operates to the systematic disadvantage of religious litigants. This is not a claim about "vested interests" you may or may not have, but instead about the foreseeable, practical effect of your position if it were the law.
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu]On Behalf Of Hamilton02 at aol.com
Sent: Wednesday, April 13, 2005 2:38 PM
To: religionlaw at lists.ucla.edu
Subject: Re: Religion-only accommodation question
As I've said repeatedly, legislatures are far from perfect. But they are institutionally more competent to assess the public good than courts are. They are also more accountable. I have no vested interest in seeing accommodations denied, and support many, but the blind accommodation formulation of a rfra leaves too many entities at risk of harm.
In a message dated 4/12/2005 5:35:31 P.M. Eastern Standard Time, apicarello at becketfund.org writes:
Somehow, then, legislatures are paragons of deliberation about the public good when religious people or institutions seek exceptions under the First Amendment through the courts, but then "ciphers" offering "blind handouts" when they would legislate accommodations of religious exercise for all.
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