Religious freedom and 42 USC 666

[Volokh, Eugene]

	Sherrod v. Tenn. Dep't of Human Servs., 2008 WL 2894691 (Tenn.
Ct. App.), involves a father who refused to pay his child support,
partly because "Mr. Sherrod states that he is a Born Again Christian and
a Sunday School teacher and that he is greatly disturbed that DHS is
attempting to compel him to submit to an order which relies for its
authority upon a federal statute, 42 USC sec. 666.  He cites us to the
Book of Revelations, where the number 666 is associated with the 'Mark
of the Beast' and the end of days."
 
	Assume Sherrod is sincere, not implausible given his willingness
to fight the matter at trial and on appeal over $1,188 in arrearages
(granted, he's litigating pro se, but this presumably has taken a good
deal of time and effort, and some money, on his part).  Assume also that
a strict scrutiny regime applies.  (Whether because Sherrod didn't raise
RFRA or whether because for some reason RFRA is inapplicable givne the
procedural posture, this particular court applied the Smith approach.)
 
	Should Sherrod prevail?  I take it that the government could
just reenact 42 USC sec. 666 as 42 USC sec. something-else, and thus
alleviate the burden on Sherrod's religion; does that make enforcing 42
USC 666 not the least restrictive alternative?  Or are alternatives that
involve having Congress take the time and effort to renumber a statute
(or enact a duplicate copy) just too burdensome to be considered as part
of the least restrictive alternative inquiry (or are otherwise improper
for consideration).

	I should say, by the way, that I don't think Sherrod should win
as a matter of principles, nor do I think it likely that he would in
fact win even under a RFRA-like regime.  But that's partly because I
support Smith, and while I support statutory RFRAs, I think strict
scrutiny is the wrong standard for them to use.  So I wanted to probe
what ought to happen under a Sherbert/Yoder regime, as honestly applied.

	Eugene