Justice Stevens

[Hamilton02 at aol.com]

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
 
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
 
 
 
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 
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
>
>
>
>







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