"A Bible study group and a book club are not treated the same"

[Bezanson, Randall P]

Let's see ... speech is fully protected, but religious speech is even more fully protected, indeed advantaged.Can that be right?  Yes, if the Free Exercise Clause confers special protections for religious speech exercise -- a not implausible theory.  Yet I have always thought that the non-establishment clause could justify greater or additional limitations on religious speech.  Could both be true?  I don't see any reason why not since the two religious clauses are often, though not always, at war with one another because they serve two distinct purposes.

Randy Bezanson

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, June 19, 2009 10:05 AM
To: Law & Religion issues for Law Academics
Subject: "A Bible study group and a book club are not treated the same"

        I haven't read the whole opinion yet, but in my skim I was struck by this line:

        "The trial court appears to have been troubled that an operation which can be and often is conducted for purely secular purposes could be entitled to increased protection from government regulation if conducted for religious reasons. But TRFRA guarantees such protection. Just as a Bible study group and a book club are not treated the same, neither are a halfway house operated for religious purposes and one that is not. Under Smith, the Free Exercise Clause does not require strict scrutiny for religious activity affected by neutral laws of general application,66 but TRFRA imposes the requirement by statute."

        Is it clear that it's constitutional, given the Free Speech Clause and the Establishment Clause, and the position of 6 of the votes in Texas Monthly v. Bullock, for the law to treat Bible study groups better than book clubs?

        Eugene



From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Friday, June 19, 2009 7:58 AM
To: religionlaw at lists.ucla.edu
Subject: Texas RFRA

The Supreme Court of Texas has unanimously given the Texas RFRA its intended meaning to provide real protection for exercises of religion.  Barr v. City of Sinton, Link to opinion below.  The case involves a religious halfway house in a small town in South Texas.  The city made no serious effort to prove a  compelling interest in closing the halfway house; its main argument seemed to be that there was no burden because the halfway house could leave town, and that that Texas RFRA should not apply to zoning anyway.
Most of the opposition to Texas RFRA was from neighborhood associations worried about land use.  The lead sponsor in the House told me that if people got the idea that this meant that black churches could locate in white neighborhoods, the bill would be dead.  The compromise was to provide that cities would have no less land use authority than they had had under federal law on March 17, 1990 (the day before Smith.)  The land use folks claimed that Sherbert and Yoder had never applied to them; the bill's supporters claimed that Sherbert and Yoder had been a generally applicable test that applied to all regulation, including land use regulation.  The state supreme court just resolved that argument in favor of the bill's supporters.
http://www.supreme.courts.state.tx.us/historical/2009/jun/060074.htm

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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