News of Employment Division v. Smith not reaching some district courts?

[Christopher C. Lund]

It's a little more complicated than district courts simply forgetting about Smith, isn't it?  As a result of Boerne, RFRA now only modifies federal law and so it only applies to federal inmates (like Hammer) and not to state inmates (like Workman and Alley).  But it's easy to see how courts get confused.  Because federal execution law explicitly incorporates state law, the ultimate question examined in Hammer is (and should be) whether Pennsylvania's state autopsy statutes satisfy RFRA.  The Workman and Alley courts see RFRA being applied to state law and simply follow along.  They've read Hammer wrongly -- they haven't noticed the difference between state law applying of its own accord (where RFRA does not apply) and state law applying at the direction of federal law (where RFRA does apply).  But that's an understandable mistake, and not at all the same as district courts not hearing about Smith.
 
But, putting doctrine aside, don't you find these cases alarming?  Many religions -- Navajo Indians, the Hmong, Orthodox Jews, etc. -- object to autopsies.  Some believe that they threaten the very souls of the deceased.  Forcing autopsies on them is one of the worst burdens imaginable -- it would be like forcing cremation on Christians who believe their physical bodies are necessary for any later resurrection.  (Since the Second Vatican Council, the Catholic Church has slowly eased up on its prohibition of cremation, although the Greek Orthodox Church still vigilantly adheres to it.)  And in the prisoner-autopsy context -- where death row inmates are suing to stop their own bodies from being autopsied after death -- these extreme burdens on religious liberty are totally unnecessary.  Why exactly does the government need an autopsy to establish the cause of death of a person it has just executed?
 



> Date: Fri, 7 Jul 2006 15:36:07 -0700> From: VOLOKH at law.ucla.edu> To: religionlaw at lists.ucla.edu> Subject: News of Employment Division v. Smith not reaching some district courts?> > Alley v. Levy, 2006 WL 1804605 (M.D. Tenn.) grants a Tennessee> state death row inmate's request for a preliminary injunction blocking> the autopsy of his body, on Free Exercise Clause grounds.  The court> says nothing about Smith, and simply asserts that strict scrutiny> applies.  It cites Workman v. Levy, 136 F. Supp. 2d 899, 900 (M.D. Tenn.> 2001), which had done the same; that in turns cites United States v.> Hammer, 121 F. Supp. 2d 794, 802 (M.D. Pa. 2000), which had done the> same (though at least in Hammer the same result might have been reached> under RFRA, since that involves a federal inmate). > > Eugene> _______________________________________________> To post, send message to Religionlaw at lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw> > Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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