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

[Douglas Laycock]

  I think Alan's formulation is also inconsistent with Smith's choice
of "general applicability" as the trigger for more intense scrutiny,
with it's emphasis on individualized exceptions, and with its
reliance on those standards as the basis for distinguishing Sherbert
v. Verner.

  Quoting "Brownstein, Alan" <aebrownstein at ucdavis.edu>:

> 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
>
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
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