Smith and exemptions

[Brownstein, Alan]

I think the more interesting question raised by this case - at least
based on Marc's description of it - is whether courts should provide
more rigorous review of regulations burdening religious organizations or
individuals when the law at issue regulates speech or voting or ballot
access. If a law in any of these areas would be subject to some standard
of review less than strict scrutiny when the law is applied to a secular
organization or individual, would the same law be subject to strict
scrutiny with regard to its application to a religious organization or
individual. In light of the Court's often stated conclusion that
religion is a viewpoint of speech, does the free exercise clause require
that speakers expressing religious viewpoints - particularly in the
context of political campaigns - must receive greater protection for
their expressive activities than speakers expressing secular viewpoints.


 

I think the answer to that question has to be that it does not - and
that the few cases touching this issue support this answer.

 

Alan Brownstein

 

________________________________

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Marc Stern
Sent: Tuesday, October 17, 2006 6:58 AM
To: Law & Religion issues for Law Academics
Subject: RE: Smith and exemptions

 

 

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

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