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

[Volokh, Eugene]

        I agree with Alan on all these points, but I should also add that the one time in the Sherbert/Yorder era that the Court considered a free speech claim coupled with a free exercise claim, it seemed to conclude that the Free Exercise Clause should be interpreted as providing *no* extra protection for religious speech -- that was in Heffron v. ISKCON, 452 U.S. 640 (1981).

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-
> bounces at lists.ucla.edu] On Behalf Of Brownstein, Alan
> Sent: Saturday, June 20, 2009 5:53 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: "A Bible study group and a book club are not treated the same"
>
> If we had a constitutional regime that confers special protections for non-
> expressive religious exercise against neutral laws of general applicability, the
> issue of how to treat expressive religious exercise would require some difficult
> line drawing and analysis. But since Smith controls the meaning of the free
> exercise clause, there is no special federal constitutional protection for religious
> exercise -- whether it is expressive or not. Under this regime a statute that
> confers special protection for expressive religious exercise is going to confront
> serious and unavoidable establishment clause and free speech clause issues,
> isn't it?
>
> Alan Brownstein
> ________________________________________
> From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu]
> On Behalf Of Bezanson, Randall P [randy-bezanson at uiowa.edu]
> Sent: Friday, June 19, 2009 9:05 AM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: "A Bible study group and a book club are not treated the same"
>
> 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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