Religion-only accommodation question

[Hamilton02 at aol.com]

With all due respect, I have said repeatedly that Smith's theory of  
republican democracy underlying religious rights supports my reading of its  support 
for the relative competencies of the legislative and judicial branches  on 
these issues.  Republican democracy is not legitimate when lawmaking is  a result 
of blind deference, whether it is to religious entities or it is an  example 
of blind delegation to the executive branch.  This is a robust  theory of 
legislative responsibility and capacity, which Smith supports.   (Of course, the 
Court has not been wiling to enforce the nondelegation  principle, so that 
element of blind lawmaking remains constitutional)--but that  is another topic).  
In any event, the court makes it clear that  accommodation "may" be 
constitutional, leaving Texas Monthly and other previous  precedents and dictum arguing 
against accommodation in place.  So Smith  grandfathers in the pre-existing 
Establishment Clause precedents that make  RLUIPA (especially on the land use 
side) suspect.
 
The Boerne decision also supports my argument that blind accommodation  is 
unconstitutional, here, as an exercise of Sec. 5 authority, because it  holds 
that in order to force states to accommodate beyond constitutional  
requirements, Congress must be aware of (1) the existing constitutional  violations that 
are widespread and persisting and justify the federal intrusion  and (2) the 
accommodation is congruent and proportional response to the  widespread and 
persisting violations. Congress cannot enact Sec. 5 legislation  under this theory 
WITHOUT knowing (1) what PARTICULAR constitutional  violations are at issue 
(e.g., RFRA and RLUIPA) and (2) how its law would impact  the states.  So the 
blind accommodation formula is forbidden if that  accommodation is enacted 
pursuant to Sec. 5.  (The same analysis applies  under the commerce clause, via, 
Lopez, Condon, and Morrison).
 
The Congress has not been called to account under the spending clause,  
however, to be clear and/or specific about what it is doing, so if there is an  
opening for Congress to do what it wants in this arena without coming to any  
full understanding of the impact of its legislation, the spending clause is  
going to be the refuge.  
 
In my experience, these requirements of clarity have operated in favor  of 
those who would be hurt by religious accommodation.  It was the dawning  
awareness by members of Congress of the harm that resulted from a broad RFRA  
formulation in arenas involving children and other arenas that made RLPA  infeasible. 
 That harm was capable of being inserted into the process by  the framework 
of the Boerne decision.  The growing awareness of the  underside of RFRA and 
RLPA is why we have RLUIPA instead.   It is narrower in contrast to the enormous 
coverage of RFRA/RLPA, but it  still amounts to the broadest accommodation to 
be considered by the Court,  second only to RFRA.  It is the equivalent of an 
Amos-like decision  covering employment law (not just discrimination in 
hiring).
 
Marci
 
 
 
 
In a message dated 4/15/2005 6:02:18 P.M. Eastern Standard Time,  
apicarello at becketfund.org writes:

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.


 
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