Smith and exemptions

[Brownstein, Alan]

I think David's absolutely right that there are characteristics of
religion that justify it receiving special constitutional treatment. And
I certainly did not intend to suggest that we should collapse the
protection of religion into the protection of speech whenever there is
any speech dimension to religious activity. Most of the time the
practice of religion should not be viewed as speech - but rather as the
exercise of religion. 

 

But there are situations where religious expressive activities should be
treated as speech for the purposes of reviewing regulations that burden
or restrict them. Drawing that line may not be that easy to do, but I
think it has to be done. Some of the places where I think strong
arguments can be offered to treat religious expressive activities as
speech involve content neutral speech regulations, and the regulation of
elections (regulations relating to voting, ballot access, campaign
financing laws etc.)

 

Alan Brownstein

 

________________________________

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of David E. Guinn
Sent: Tuesday, October 17, 2006 9:30 AM
To: Law & Religion issues for Law Academics
Subject: Re: Smith and exemptions

 

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 <mailto:aebrownstein at law.ucdavis.edu>  

	To: Law & Religion issues for Law Academics
<mailto:religionlaw at lists.ucla.edu>  

	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

	 

	
________________________________


	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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