"Mormon Student, Justice, ACLU Join Up"

[Brownstein, Alan]

While I think Doug is right that any kind of rigid line drawn between
religious obligations and all other religious motivations is unworkable
and will lead to bizarre results, I think the same criticism can be
directed at a doctrine that only protects religiously motivated conduct
in cases where similar secular conduct has received an exemption from a
general law.  Everything depends on how broadly you define the law or
policy that recognizes a secular exemption. Thus, in FOP, suppose there
are two rules - one requiring police to be clean shaven and another
requiring police to cut their hair short. There is a medical exception
to the shaving requirement but no exception to the hair length
requirement. Muslim officers can challenge the refusal to grant them a
religious exemption from the shaving requirement under rigorous review.
But what happens to Native American officers who seek a religious
exemption from the hair length requirement? Maybe we can combine both
requirements into a single "grooming policy", but the more we are
willing to do that, the more likely it is that the FOP exception to
Smith swallows the rule.

 

Alan Brownstein

 

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Thursday, August 30, 2007 8:01 AM
To: religionlaw at lists.ucla.edu
Subject: Re: "Mormon Student, Justice, ACLU Join Up"

 

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

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