RLUIPA and Compelling Interests

[marty.lederman at comcast.net]

One interesting thing about this thread is that it demonstrates just how indeterminate is the notion of "compelling" government interest, lo these many years after it was first invoked in Equal Protection jurisprudence.  The Court and the Congress have never even begun to provide any indication of how one should go about distinguishing "compelling" from "non-compelling" state interests -- nor even addressed the critical antecedent question:  Compelling *by whose lights*?

Eugene writes that it's "hard to say" whether avoiding light pollution that would materially undermine the observatory's work is a compelling interest; and that "it's hard for me to see . . . as 'compelling'" the interest in preventing annoyance to neighbors "who might like a natural-looking night sky."  Mark, for his part, writes that "protecting the usefulness of one of the most important scientific instruments in the world (the 200 inch Palomar telescope) would be pretty high in my scale of interests."

OK, perhaps those are both reasonable views.  But so would be the opposite views.  And aren't all these sorts of calculations simply an expression of what *individual law professors,* such as Mark and Eugene, think is important?  Why, might one ask, should we care especially about what seems important to Mark, or to Eugene, or to me, or to a consensus of ReligionLaw subscribers?  That makes very little sense under the Free Exercise Clause, and even less under RLUIPA, since if it's fair to presume *anything* about what Congress meant by "compelling," it might be this:  whatever is compelling *in the eyes of the national legislature.*  Of course, even that is question-begging, because presumably Congress finds, for example, each of its own enactments "compelling" enough to have been passed by both houses, and yet each of those enactments is subject to RFRA.

Has anyone ever come across a legal opinion, or even a law-review article, that persuasively explains how to decide whether an interest is "compelling"?  It's something of an embarrassment that this is one of the most important doctrinal notions that we convey to our students in many CONLAW classes, and yet we have virtually nothing of value to tell them about how the category is or should be understood.


 -------------- Original message ----------------------
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
> 	I'm not sure whether avoiding light pollution that would
> materially undermine the observatory's work is a compelling interest; I
> suspect it is, but that's hard to say.  But there just seems to be
> little reason to think that allowing this exemption for this one cross
> would indeed materially undermine the observatory's work.
> 
> 	The interest in preventing annoyance to neighbors who might like
> a natural-looking night sky is implicated even by this one cross.  But
> it's hard for me to see this interest as "compelling."
> 
> 	As to "all-or-nothing," and in particular Steve's argument that
> this is a "time, place, or manner" restriction which should be subject
> to lower scrutiny, I just don't see how RLUIPA's text would be
> consistent with that.  If there is a substantial burden on religious
> exercise, RLUIPA calls for strict scrutiny.
> 
> > -----Original Message-----
> > From: religionlaw-bounces at lists.ucla.edu 
> > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
> > Sent: Monday, December 11, 2006 10:54 AM
> > To: Law & Religion issues for Law Academics
> > Subject: Re: RE: RLUIPA and light pollution?
> > 
> > Eugene,
> > 
> > Do you mean to say that avoiding light pollution for the 
> > astronomical observatory is not compelling?  Or are you 
> > saying that the law is not narrowly tailored enough or is not 
> > the least restrictive alternative?
> > 
> > It seems to me that the interest is compelling and that the 
> > inquiry would not be about that, but rather about least 
> > restrictrive.  Or does one not even get to least restrictive 
> > alternative if there is a compelling interest that does not 
> > substantially burden?
> > 
> > I think one could argue that  there is a compelling interest 
> > here, and that it does not substantially burdent the 
> > exercise, and that one does not need to find a less 
> > restrictive alternative under  these circumstances.
> > 
> > I also stand by my prior post that I don't think RLUIPA or 
> > RFRAs should be interpretted in the Volokhian all-or-nothing manner.
> > 
> > Steve
> > 
> > 
> > --
> > Prof. Steven Jamar
> > Howard University School of Law
> > _______________________________________________
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