Nevada district court applies Fraternal Order of Police v.Newark(3d Cir.), holds no-beard poli

[Volokh, Eugene]

	I agree with Marci about the Free Exercise Clause, but of course
both Title VII and various jurisdiction-by-jurisdiction RFRAs (though
there is not one in Nevada) represent the political process itself
making a judgment that courts should draw the lines in the first
instance.

	I do think it makes a difference that statutory schemes such as
Title VII and RFRA are themselves revisable by the political process, so
courts draw the first line but the legislature may revise them -- much
as has long been the case with the making of common-law rules and
common-law defenses, as well as statutorily founded antitrust law,
post-Federal-Rules-of-Evidence privilege law, fair use law under the
Copyright Act, and the like.  That's why I support
jurisdiction-by-jurisdiction RFRAs even though I also support Smith
(http://www.law.ucla.edu/volokh/relfree.htm).  But I think it's helpful
not to generally condemn judicial decisionmaking as such as to religious
exemptions, only judicial decisionmaking that's final and unmodifiable
by the legislature.

	Eugene

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of 
> hamilton02 at aol.com
> Sent: Wednesday, August 13, 2008 10:04 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Nevada district court applies Fraternal Order of 
> Police v.Newark(3d Cir.), holds no-beard poli
> 
> I think the policy debate on this case illustrates why the 
> First Amendment and the courts have no business determining 
> accommodation.  The ease w which those outside of government 
> can judge that govt policy is necessarily wanting because it 
> may burden religious practice is impressive. 
> But the more interesting question is why the courts are 
> better at drawing these lines than the political process.
> Marci
> Sent from my Verizon Wireless BlackBerry
> 
> -----Original Message-----
> From: "Christopher Lund" <Lund at mc.edu>
> 
> Date: Wed, 13 Aug 2008 10:33:17
> To: <religionlaw at lists.ucla.edu>
> Subject: Re: Nevada district court applies Fraternal Order of 
> Police v.
> 	Newark (3d Cir.), holds no-beard poli
> 
> 
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