forum shopping in the us

[Douglas Laycock]

  It is all defined by federalism, including the Supreme Court's
decision in City of Boerne v. Flores.

  If the claimant is challenging a federal law or regulation, he can
rely on the federal Free Exercise Clause or the federal RFRA.  But
not on any state law, because federal law is supreme.

  If the claimant is challenging a state or local law or regulation,
he can rely on the federal Free Exercise Clause (because it is
supreme), that state's free exercise clause, that state's RFRA (if it
has one).  If it's a prison or land use case, he can rely on RLUIPA
(the federal Religious Land Use and Institutionalized Persons Act),
because that act is designed to be constitutional even after the
Supreme Court's opinion in Boerne.  The lower courts are upholding
it; Marci Hamilton still wants the Supreme Court to strike it down. 
The claimant challenging state law cannot rely on federal RFRA,
because Boerne held that unconstitutional as applied to the states.

  It is not a matter of picking the forum, but a matter of what law
your are challenging and the scope of each source of law that
protects religious liberty.

  Quoting warren gower <wputoigower at hotmail.com>:

> I am wondering whether there are any academic articles (or whether 
> someone on this list can expound) on the subject of which source of

> law is open for use by claimants in free exercise cases. I see a 
> crowded vista of the Federal Constitution, State Constitutions, Fed

> RFRA, and State RFRAs. Can a claimant "forum shop" for the most 
> favourable of these sources? I understand for example, that some 
> state constitutions have been interpreted as mandating the 
> application of the pre-Smith doctrine of free exercise exemptions 
> (Marci Hamilton is particularly aggrieved by this phenomenon in her

> book, God vs.the Gavel). Can a free exercise claimant therefore
avoid
> the harsher Post-Smith federal regime by remaining within a benign 
> state set-up (I assume this is so, otherwise Ms Hamilton would not
be
> so concerned)? Is this resolved by the principle that the federal 
> Const provides a floor of protection, but the states can rise above

> it? I realise this is probably a naive question and the answer is
no
> doubt governed by a simple hierarchical structure and by the 
> contingencies of litigation, but I'm viewing the American system
from
> afar in New Zealand, where everything is made much simpler by dint
of
> our non-federal unicameral system of government and lack of a 
> constitutional Bill of Rights.
>
> Warren P Gower
>
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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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