Transcript in case dismissed because plaintiff Muslimwomanrefused to unveil to testify

[Brownstein, Alan]

Doug is correct about individualized exceptions influencing the level of
review.  If we are talking about discretionary individualized exceptions
such as an open hardship exception or a regulatory regime that is
intrinsically individualized - such as the land use system of variances,
conditional use permits and rezoning on which RLUIPA is based - Smith
does support the rigorous review of the denial of an exemption on free
exercise grounds. I should have noted that in my comment.

 

But if we are talking about more categorical exceptions (which are what
I was thinking about), I don't believe this kind of a lack of "general
applicability" is a trigger for strict scrutiny other than in the
religious gerrymander context. There are a lot of reasons for my being
dubious about this general applicability argument:

Interpreted expansively, it swallows up the rule. To make it work under
a "narrow" interpretation, you have to apply some level of review that
is more rigorous than rational basis to all free exercise challenges
grounded on a categorical exception. It makes the protection that the
exercise of a fundamental right receives depend on a fortuity and it may
produce results that lack uniformity and any sense of fairness. It is
subject to manipulation. It doesn't respond to the reasons why Scalia
doesn't want the Court to adjudicate free exercise claims (i.e. why
would someone who believes what Scalia believes about free exercise
claims want to draw the line here.) 

 

If an aggressive interpretation of the "general applicability" argument
isn't consistent with Smith (and I don't think it is), then this
argument would have to be defended as an alternative to Smith. But if we
are going to overrule Smith, I think there are better alternatives out
there than an extended general applicability doctrine.

 

Of course, as a lawyer, you use what the Court gives you. Given the lack
of careful analysis throughout the Smith opinion, it is hardly
surprising that the exceptions Smith recognizes are ambiguous.

 

Alan Brownstein 

 

 

 

________________________________

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Wednesday, December 20, 2006 8:10 AM
To: religionlaw at lists.ucla.edu
Subject: RE: Transcript in case dismissed because plaintiff
Muslimwomanrefused to unveil to testify

 

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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