"Mormon Student, Justice, ACLU Join Up"

[John Taylor]

I have followed this a bit in the local press and I believe the
plaintiff's argument is basically based on Alito's opinion in FOP v
Newark.  The state could presumably say "no one can defer" and that
would pass muster under Smith, but the argument is that by granting
deferments for military or medical reasons and denying deferments for
other reasons (including religious ones), the state is privileging
secular reasons over religious ones, etc.  This, under the reasoning of
FOP, would mean the law is not neutral and generally applicable.  The
ACLU has also pointed out that there appears to be some license to grant
deferments on an individualized, ad hoc basis — and this arguably
brings the case within the "system of individualized exemptions"
exception to Smith.  If the FOP opinion is an appropriate interpretation
of Free Exercise law in light of Smith and Lukumi — and if my
recollection of past discussions is correct, list contributors hold
different views about that — then the plaintiff has a pretty good
case.

John Taylor
WVU College of Law

>>> Douglas Laycock <laycockd at umich.edu> 8/30/2007 11:00 AM >>>


  Even Sandy has the instinct to distinguish religious obligation
from all other religious motivations, however strong.  That's a
mistake, and leads to a wholly unworkable rule and absurd results. On
remand in Witters v. Wash,. Dept. of Services for the Blind, the
Supreme Court of Washington said that becoming a minister is not an
exercise of religion, because it is not mandatory. Obviously not
mandatory, because most people never do it. And there is a Second
Circuit case in 1980 or thereabouts, Brandon v. some school board,
that says that Christian prayer is not an exercise of religion
because it is not mandatory at any particular time. But Muslim prayer
at the five required times per day would be an exercise of religion.

  In the case at hand, given that the U grants leaves of absence for
community service and military service, it's not clear that the
requested solicitude for Mormon missions is so "special."

  Quoting Sanford Levinson <SLevinson at law.utexas.edu>:

> Doesn't the question boil down to whether the school can put ANY
> restraints on the desire to take a couple of years off?  If,
argendo,
> it can, then I don't understand why the Mormon gets special
> solicitude, given that it's not an obligation, as distinguished
from
> Sherbert.  Whether the school's policy is wise is a separate
question.
>
> Sandy
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713