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

[Hamilton02 at aol.com]

When the federal courts ask the question whether a state law satisfies  RFRA, 
they violate principles of federalism -- even if the federal law  recognizes 
the force of state law.  Nelson's interpretation is an  extraordinary 
circumvention of not only Boerne, but states' rights in  general.  
 
I think the ignoring of Smith is more insidious, and arises in no small  part 
from law clerks who have been taught that Smith is only to be applied  in the 
breach, despite its broad language and application.  The orthodoxy  of the 
academy has worked extremely hard to push Smith into a small  corner.  I thought 
the most interesting aspect of the O Centro decision  this last Term was the 
Court's matter-of-fact embrasure of the Smith approach,  including its spirit. 
 This spirit of the law has been relatively slow  to reach the district court 
and academic level.
 
Marci
 
 
 
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
55 Fifth Avenue
New York, NY 10003
 
 
 
 
In a message dated 7/9/2006 2:12:39 P.M. Eastern Standard Time,  
chlund1 at hotmail.com writes:

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.




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