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

[Scarberry, Mark]

To the extent that federal law incorporates state law, the federal law
that does so is subject to RFRA and may not permissibly incorporate the
state law to the extent that the result would violate RFRA. It's not
that the state law violates RFRA but that Congress has chosen to limit
the effect of federal law so as to protect religious freedom. A court
going through this analysis should be careful to note that the state law
does not (indeed, after Boerne, cannot) violate RFRA, and to make clear
that all that the court is deciding is the content of federal law as
directed by Congress.
 
Mark S. Scarberry
Pepperdine University School of Law
 
 

  _____  

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
Hamilton02 at aol.com
Sent: Monday, July 10, 2006 7:49 AM
To: religionlaw at lists.ucla.edu
Subject: Re: News of Employment Division v. Smith not reaching some
district courts?


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.


 
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20060717/7df540e3/attachment.htm