Transcript in case dismissed because plaintiff Muslimwomanrefused to unveil to testify

[Volokh, Eugene]

    I appreciate Alan's suggestion, and I think that if Sherbert and
Yoder hadn't demanded strict scrutiny, Smith might not have happened.  


________________________________

	From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Brownstein,
Alan
	Sent: Tuesday, December 19, 2006 5:51 PM
	To: Law & Religion issues for Law Academics
	Subject: RE: Transcript in case dismissed because plaintiff
Muslimwomanrefused to unveil to testify
	
	

	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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