Smith and exemptions

Friedman, Howard M. HFriedm at UTNet.UToledo.Edu
Tue Oct 17 10:42:12 PDT 2006

The full opinion is available at




From: religionlaw-bounces at
[mailto:religionlaw-bounces at] On Behalf Of Marc Stern
Sent: Tuesday, October 17, 2006 1:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: Smith and exemptions


John Taylor is trying to post the full opinion, a task well beyond my
technical competence.

I tend to agree with Alan about speech based claims of this sort not
being decided differently because the speaker is religious. In any
event, aside from the exemption point, I have trouble seeing a
particular burden on religion by campaign finance disclosure laws-or for
that matter charitable registration laws.  However, the trial judge can
hardly be faulted for going through a complaint cause of action by cause
of action and dispensing with all the claims seriatim.

Alan's point reflects a deeply secular point of view-that religion is
just another ideology. David is quite right to question whether the
constitution accepts that conceptualization of religion. It is ironic,
though, that Alan's point is underscored by the various cases beginning
with Widmar in which religious speakers have urged exactly his position
to gain access to public places and to justify public funding of
religious enterprises.

Marc Stern 



From: religionlaw-bounces at
[mailto:religionlaw-bounces at] On Behalf Of David E. Guinn
Sent: Tuesday, October 17, 2006 12:30 PM
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


----- Original Message ----- 

	From: Brownstein, Alan <mailto:aebrownstein at>  

	To: Law & Religion issues for Law Academics
<mailto:religionlaw at>  

	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
[mailto:religionlaw-bounces at] 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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