Accommodation and fairness to others

[Douglas Laycock]

I briefly talk about the uses of centrality in The Remnants of Free
Exercise, 1990 Sup. Ct. Rev. 1, 31-33.  It is true, as Eugene says and I
did not, that magnitude of burden does not directly equate to
centrality.  A second and I think more fundamental point, is that what
Scalia rejected in Smith is a threshold requirement of centrality.  He
is right that that would be completely unworkable, because it would
convert a continuous variable into a dichotomous one, and vastly raise
the stakes on the inevitable judicial errors in assessing centrality.  A
consideration of the importance of the religious practice as part of the
balancing process is very different from a threshold requirement, and I
think very necessary.  Of course it does not follow that five justices
would agree.




Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
   512-232-1341 (phone)
   512-471-6988 (fax)

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, March 27, 2006 4:52 PM
To: Law & Religion issues for Law Academics
Subject: RE: Accommodation and fairness to others


* * * *

	(4)  I had thought that Hernandez, Lyng, and Smith held that a
centrality inquiry was unconstitutional, because it unconstitutionally
required judges to weigh the importance of various religious practices.
I agree, though, that an inquiry into the magnitude of a burden
occasioned by the denial of a benefit would not run afoul of this -- the
question would be not how central taking Saturdays off is to
Sabbatarians, but rather how burdensome the loss of a day for the
assignment would be.

	Eugene