Nevada district court applies Fraternal OrderofPolicev.Newark(3dCir.), holds no-beard poli

[Volokh, Eugene]

	What "legislative determination of constitutional rights"?  It's
true that the legislature's rhetoric is that of expressing disagreement
with the judiciary, but they're entitled to do that.  What the
legislature actually did was create a *statutory* right that, in
essence, gives courts considerable discretion in deciding when to carve
out exemptions.  But since courts have historically exercised far
greater discretion in creating common-law rules, common-law defenses,
and even common-law doctrines within statutory schemes (consider, in the
federal system, fair use, antitrust law, and evidentiary privileges, or
in some states common-law defenses to statutory penal codes), there's no
violation of separation of powers there:  The legislature is calling on
courts to exercise their lawmaking discretion in certain contexts, but
that discretion has long been a part of the judicial role.

	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 6:39 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Nevada district court applies Fraternal 
> OrderofPolicev.Newark(3dCir.), holds no-beard poli
> 
> The constitutionality of state rfras has been underexamined 
> in part because they are not frequently invoked.  In any 
> event, the state separation of powers doctrines are less 
> forgiving of legislative determination of constitutional 
> rights than federal government.  Even federal doctrine may be 
> problematic as J Thomas indicated in Cutter.  The Supreme 
> Court has yet to address constitutionality of rluipa or rfras 
> beyond Boerne and Cutter.
> Marci
> Sent from my Verizon Wireless BlackBerry
> 
> -----Original Message-----
> From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
> 
> Date: Wed, 13 Aug 2008 16:58:31
> To: Law & Religion issues for Law 
> Academics<religionlaw at lists.ucla.edu>
> Subject: RE: Nevada district court applies Fraternal Order 
> ofPolicev.Newark(3d
> 	Cir.), holds no-beard poli
> 
> 
>     I've never seen the constitutional argument against state RFRAs.
> They can't be unconstitutional under the Establishment Clause, given
> Cutter.  And the separation of powers argument presupposes that it's
> somehow inconsistent with the judicial role to make these sorts of
> policy decisions (subject to legislative revision) -- yet judges have
> throughout American history made much broader policy 
> decisions (subject
> to legislative revision) in shaping the law of torts, crimes, 
> property,
> evidence, contract, and more.
> 
>     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 4:56 PM
> > To: Law & Religion issues for Law Academics
> > Subject: Re: Nevada district court applies Fraternal Order 
> > ofPolicev.Newark(3d Cir.), holds no-beard poli
> > 
> > I  agree w Gene on this up to the pt he endorses state by 
> > state rfras. While I think state by state is preferable to 
> > federal, I do not think they are either good policy or sound 
> > constitutionally.  But I think there is another point here -- 
> > pushing these issues into the ct keeps legislators relatively 
> > uninformed about the actual impact of religiously motivated 
> > behavior and therefore unrealistically positive about the 
> > potential harm from such conduct.  That increases risk to the 
> > vulnerable (especially those with little power in the 
> > legislative process), particularly children.  I do not think 
> > the first amendment was intended to or should impede the 
> > protection of the vulnerable from harm. I realize that I have 
> > now traveled relatively far from the original post, but think 
> > the framework is important to explain why I do not view 
> > courts as good fora for determining the scope of accommodation. 
> > Marci
> > Sent from my Verizon Wireless BlackBerry
> > 
> > -----Original Message-----
> > From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
> > 
> > Date: Wed, 13 Aug 2008 10:09:42
> > To: Law & Religion issues for Law 
> > Academics<religionlaw at lists.ucla.edu>
> > Subject: RE: Nevada district court applies Fraternal Order of Police
> >   v.Newark(3d Cir.), holds no-beard poli
> > 
> > 
> >     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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