Justice Stevens

[Douglas Laycock]

One possibility is that in Cutter and Gonzales, the equality protecting function of religious exemptions was much more apparent.  Ohio openly said that it accommodated good religions in its prisons, but not the bad religions in which the plaintiffs participated; the state was pretty explicitly arguing for its right to designate good and bad religions.  In Gonzales, the government never had a plausible explanation for why it exempted peyote but not hoasca.  This sort of discrimination was not developed in the record in Boerne, which was up basically on the pleadings, and the city did not openly avow it the way Ohio did. 

Another possibility is that he was just confused in Boerne, and, less likely, that he eventually realized that.  He said that an art museum owned by an atheist would not be protected by RFRA.  But of course, an art museum owned by a Catholic almost certainly would not be protected by RFRA either.  The relevant analogy to the church would be an atheist meeting house, which should be protected by RFRA, although many judges are reluctant to see it that way. 

Quoting Kevin Pybas <kevinpybas at missouristate.edu>:

> Can someone shed light on why Justice Stevens in Boerne viewed RFRA as a
> violation of the Establishment Clause but raised no EC problem with RLUIPA
> in Cutter or RFRA in Gonzales?  In Boerne he wrote that RFRA "provided the
> Church with a legal weapon that no atheist or agnostic can obtain. This
> governmental preference for religion, as opposed to irreligion, is forbidden
> by the First Amendment."   Shouldn't this understanding have led him to also
> object in Cutter and Gonzales?  The answer's probably staring me in the face
> but I don't see it.  Thanks.
>
>
>
> Kevin Pybas
>
> Missouri State University
>
>
>
>

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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