Hamilton02 at aol.com
Hamilton02 at aol.com
Mon Jun 23 10:39:02 PDT 2008
I strongly object to Doug's implication that somehow the City of Boerne was
hiding discriminatory motives that would have been revealed had the suit gone
forward. The Mayor of Boerne, after all, was a minister and many in the
town were Catholic. As an aside, the Church itself was divided over who to pray
for during oral argument. The attempt to paint every loss by a religious
entity in the land use process as some sort of covert persecution or
discrimination is what has made RLUIPA such an intolerable entrant for most
neighborhoods next to religious entities invoking RLUIPA.
Of course RFRA applied to an art museum owned by a Catholic. Isn't that
precisely the RLUIPA situation, which is undoubtedly a segment of RFRA? Stevens
was correct about that. If that is not so, there are a number of developers
invoking RLUIPA who need to be notified.
His vote in Cutter and Gonzales are explained in two different ways. The
Court considered the Cutter decision to be a no headlines decision, because the
situation of prisoners is so radically different from any other possible
claim. That is why the Court pointedly justifies the prison provisions of
RLUIPA on the ground that prisons have a unique capacity to block worship
altogether. The Court goes on, however, to repeatedly say that deference needs to be
given to prison authorities on matters of safety and leaves open the
possibility that RLUIPA could unconstitutional in an as-applied manner.
With respect to Gonzales, the government did not do a great job of defending
the integrity of its drug laws and why two different drugs under the same
schedule need individualized assessment. Those arguing hoasca and peyote are
engaging in legal abstractions, not chemical realities. No two drugs work
identically, even if in the same schedule, and no two drugs are necessarily safe
for the same class of users. Given the tone of Gonzales, though, DOJ should
seriously consider backing legislation that exempts the federal drug laws
from the reach of RFRA.
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
In a message dated 6/23/2008 1:06:40 P.M. Eastern Daylight Time,
laycockd at umich.edu writes:
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
> 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
> but I don't see it. Thanks.
> Kevin Pybas
> Missouri State University
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