Smith and exemptions

[John Taylor]

That interpretation is not consistent with the Newark Police case or
with some other Third Circuit cases, which read considerable bite into
the "neutral and generally applicable" requirement.  Outside the Third
Circuit, I think it is generally unclear when/if categorical exceptions
to a general law take that law outside the Smith rule.  In a decision
vacated on ripeness grounds, the Ninth Circuit said that a law was
neutral and generally applicable so long as the pattern of exceptions
did not suggest a desire to suppress religious practice.  Thomas v
Anchorage Equal Rights Comm'm, 165 F.3d 692, 701-02.  I have not seen
any decision stating that the rule is that religion must be the ONLY
non-exempt category for Lukumi to apply.  One might say that the
ordinances in Lukumi exempted everything but religious practice, but
Kennedy was at some pains to point out that the facts there were well
beyond the boundary separating Smith cases and heightened scrutiny free
exercise cases.  

Is the decision in the case you mention available on-line?  I was
looking for it on Westlaw but was unable to find it?

John Taylor 
WVU

>>> "Marc Stern" <mstern at ajcongress.org> 10/17/2006 9:58:11 AM >>>
 

Church Ferry Road Baptist Church v Higgins was a church's challenge to
a
Montana statute requiring disclosure of certain activities and
expenditures in regard to ballot initiatives. Most of the opinion
addresses free speech implications of campaign finance law regulation,
but the court also addressed and dismissed the church's claim that it
could not be subject to disclosure laws on free exercise grounds. It
claimed that since there were some exemptions in the statute (for
newspapers and membership organizations) Lukumi required application
of
compelling interest analysis. The court rejected this submission, on
the
ground that Lukumi held that a statue was neutral and generally
applicable so long as religion was not the only non-exempt category.
Is
that right? The Third Circuit apparently disagreed in the Newark
Police
cases.

Marc Stern