Smith and exemptions

[David E. Guinn]

I agree with Alan's refinement of the issue -- but wonder about his solution.  If one collapses protection of religion into speech, why is religion relevant?  Are there not characteristics of religion, such as it associational or communitarian aspects, that are unique to religion? If the religion clauses have any independent, non-speech content, wouldn't that require some consideration of these non-speech factors?

David E. Guinn JD, PhD
 
Recent Publications Available from SSRN at 
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608

----- Original Message ----- 
  From: Brownstein, Alan 
  To: Law & Religion issues for Law Academics 
  Sent: Tuesday, October 17, 2006 11:15 AM
  Subject: RE: Smith and exemptions


  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

   


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  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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