Breaking news in federal RFRA case

[Derek Gaubatz]

Given that RFRA was a response to a decision that dealt with drug use,
it seems unlikely that it never crossed Congress' collective mind that
the Act would be applied in cases involving drugs.  But even if your
point about post hoc justification were true, then it seems equally
post-hoc to use the allegedly grave threat RFRA poses to children as a
tug-on-the-heart-string argument against RFRA now that constitutional
arguments have been rejected.  

Moreover, if there is actual evidence of danger to children as
extraordinary as you claim in a specific case, there's little reason to
think that courts will not be able to sensibly apply RFRA to take
account of that interest. 

 

 

  _____  

From: Hamilton02 at aol.com [mailto:Hamilton02 at aol.com] 
Sent: Friday, February 24, 2006 10:48 AM
To: religionlaw at lists.ucla.edu
Subject: Re: Breaking news in federal RFRA case

 

Read the legislative history behind RFRA from beginning to end -- the
administration of illegal drugs to children by religious groups is not
there.  It is a wholesale reconstruction of history to believe that
Congress considered the issue in any way, shape, or form.  The vast
majority, i.e., over 95%, of the legislative history involves
castigating the Supreme Court for Smith.  The practical consequences of
RFRA were never approached, because Congress's purpose was to reverse a
Supreme Court decision, without any meaningful consideration of what
that would accomplish at a policy level.  Now, there are post hoc
justifications for RFRA proffered all around, but they do not displace
what Congress actually considered and actually knew at the time it was
enacted.  

 

As to policy choices, it is my view that RFRA is unsound
constitutionally and policy-wise, but the latter does not undermine the
former.  

 

And, yes, the placement of a drug on Schedule I does, indeed, end the
discussion when the drug is being administered to minors.  The fact the
drugs were delivered in a religious context does not change the
extraordinary interest of the children.

 

Marci

 

 

In a message dated 2/23/2006 2:36:19 P.M. Eastern Standard Time,
mnewsom at law.howard.edu writes:

	You assume that the placement of a drug on Schedule I ends the
discussion.  I hope that you do not think that it is jesting to suppose
that that placement does not end the discussion.  Congress surely must
have some sense of the consequences of its decisions (1) to place the
drug on Schedule I and (2) to enact RFRA.

 

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