Transcript in case dismissed because plaintiff Muslim womanrefused to unveil to testify

[Brownstein, Alan]

I think I like at least part of the way that Chris has formulated the
issue - and maybe more than part (I'm not sure I fully understand his
position.)

 

I would put the issue this way. A statute that imposes some serious
burden on the exercise of religion requires some level of review greater
than rational basis - even if the burden results from a neutral law of
general applicability. Whatever that standard of review may be - and it
may be considerably lower than strict scrutiny - the standard requires
some evaluation of the government's interest or purpose in enforcing the
challenged law. In evaluating the government's interest, the reviewing
court may look to the exceptions the government has already recognized
that justify exceptions to the law's application. Determining how the
court should take this information into account, however, depends in
large measure on the rigor of the review that is being applied. The more
rigorous the review, the more appropriate is the court's consideration
of existing exceptions to the law.

 

But the key here (and I'm not sure whether Chris would agree with this
or not) is that the existence of secular exceptions has no role to play
in determining the appropriate standard of review to apply. Exceptions
inform the court in applying a standard of review with some bite to it -
but they don't justify such a standard (except in situations where there
is clearly a religious gerrymander that singles out religious exceptions
for less favorable treatment.)

 

Of course, this approach is inconsistent with that part of the holding
in Smith which rejects the evaluation of any and all neutral laws of
general applicability under any standard of review that is more rigorous
that rational basis review. But there really is very little in Smith
that justifies or defends that part of its holding. Most of the opinion
is focused on challenging the propriety of a generally applicable strict
scrutiny regime.

 

Alan Brownstein

 

________________________________

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Christopher C.
Lund
Sent: Tuesday, December 19, 2006 5:07 PM
To: Law & Religion issues for Law Academics
Subject: RE: Transcript in case dismissed because plaintiff Muslim
womanrefused to unveil to testify

 

Well, let me ask you this:  How does RFRA deal with these cases?  With
general applicability, we can begin with the rule and the exceptions
therein.  The plaintiff can't simply attack the rule -- he can't simply
say the rule serves unimportant interests -- he can only instead suggest
the rule's interests are unimportant by reference to the exemptions that
have already been made to it.  That's a bounded inquiry; RFRA, by
contrast, is much more open-ended, and the problem of incommensurability
looms larger.  But yet courts handle the line-drawing problems.
 
I'd say the key is that, under both RFRA and general applicability, once
a burden on religious exercise is established, we move away from the
mentality of the religious observer (i.e., I am free to trespass on
another's land to protect my property from destruction; adhering to my
religious beliefs is of the same order of magnitude for me) to a focus
on the government (i.e., Does the defense-of-property exception
undermine the general rule regarding private property?   Does it reveal
that the government's interest in enforcing the law against the
religious observer is insubstantial?).   Now general applicability is
different than RFRA in another way; the burden is shifted, so the
government gets a finger on the scale when the religious adherent is
trying to convince the court that the analogy works.  But in cases where
the government is exempting those with modest secular burdens (like, I
would argue, a 100-mile trip to the courthouse), but not religious
burdens that seem strikingly greater (a Muslim women's adherence to
religious command), then I don't think courts are entitled to back down
from general applicability's implications anymore than I think courts
are free to disregard RFRA because it creates difficult line-drawing
problems. 
 
That said, I can't see a general applicability challenge succeeding on
the facts you list below, with maybe two exceptions.  I think it's
interesting to rethink the ministerial exception as not an exception to
Smith, but as called for by the interplay between general applicability
and the secular BFOQ exception.  That is, if secular groups can use
gender as a BFOQ for hiring in certain crucial positions, how can the
state deny a religious group the right to use gender as a BFOQ for
hiring a minister?  I'm also interested in the analogy to fair use, and
whether the secular exception for fair use should maybe open up the
possibility of a religious exemption, but I know nothing about that and
should wait at least until I read Tom Berg's piece on the subject.
 
All the best,
Chris

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