Supreme Court won't hear appeal in CatholicCharitiesoftheDioceseof

[Hamilton02 at aol.com]

I do not disagree with Mark's analysis, except to say that it would appear  
to me that the question on the table is whether apparent exclusion of a group  
from a narrowly drawn accommodation, like this one, triggers strict  scrutiny. 
The kind of exclusion the Smith Court had in mind that would  trigger strict 
scrutiny does not look like this fact scenario where there is  accommodation.  
This is one of dozens of questions the Court has yet to  address with respect 
to permissive legislative accommodation.  
 
In any event, my point about Catholic Charities in particular is that  it is 
not similarly situated with those who have received the exemption, so  failure 
to have been included in the religious accommodation is a non-starter,  and 
no reason to invoke strict scrutiny.  What NY has done is to  incorporate into 
the Act what everyone knows -- Catholic Charities is a  quasi-public 
organization, kind of like the Jaycees for purposes of the right of  accommodation... 
That sort of line-drawing should not be constitutionally  suspicious in my view.
 
Marci
 
 
In a message dated 10/4/2007 8:25:52 P.M. Eastern Daylight Time,  
Mark.Scarberry at pepperdine.edu writes:

I know  that Marci shares with the majority of the Court (at least as of the 
date of  Smith) the view that religious groups (and in Marci's view, 
particularly the  Catholic Church) can use the political process to oppose neutral and 
generally  applicable laws that would require them to violate their religious  
consciences. But I thought Marci would agree that there is a substantial  
initial question whether any particular law is neutral and generally  applicable, 
a question that requires particular attention when some groups but  not 
others receive accommodation. And if a law is not neutral and generally  
applicable, the political process cannot, even under Smith, be trusted to  provide 
protection to religious liberty, because too many others with whom the  disfavored 
religious group would find common cause are excluded from the  effect of the 
law and thus removed as potential allies.

Mark  Scarberry
Pepperdine







************************************** See what's new at http://www.aol.com
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20071005/7d48aa7a/attachment.htm