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

Volokh, Eugene VOLOKH at law.ucla.edu
Sun Jun 21 11:37:29 PDT 2009 

        Whoops, just noticed, after reading this, that one of the names was chosen unwisely:  Alan and Betty are my standard names for such hypotheticals, and not intended to be a reference to any real Alans on this thread.

        Eugene

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-
> bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Sunday, June 21, 2009 11:34 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: "A Bible study group and a book club are not treated the same"
>
>         A hypothetical:  Alan wants to picket an abortion provider's home.  Betty
> wants to picket an anti-abortion leader's home.  Alan's motivation is religious,
> Betty's is secular philosophical.  The city has a content-neutral ban on residential
> picketing, and the state has a RFRA.
>
>         Can it really be the case that Alan would have a right to picket for religious
> reasons, but Betty wouldn't have a right to picket for secular reasons?  Or that
> both would have this right, because RFRA would require invalidation of the entire
> scheme, as the least restrictive means of serving both the interest in protecting
> religious objectors and the interest in preventing discrimination between religious
> and secular speakers?  (I assume that it's far from clear that a residential
> picketing ban would pass strict scrutiny, as opposed to the intermediate scrutiny
> applied in Frisby v. Schultz.)
>
>         Eugene
>
> > -----Original Message-----
> > From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-
> > bounces at lists.ucla.edu] On Behalf Of Brownstein, Alan
> > Sent: Sunday, June 21, 2009 10:53 AM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: "A Bible study group and a book club are not treated the same"
> >
> > Good point, Mark. I think statutes like the one reviewed in Texas Monthly that
> > facially discriminate in favor of religious speech are going  to be struck down. A
> > more generic religious liberty statute, like a state RFRA, is more complicated.
> >
> > Let's suppose a city is told that it can not enforce its zoning ordinance against a
> > Bible study group because of a state RFRA. Then a book club challenges the
> > application of the zoning ordinance to its activities on the grounds that Bible
> study
> > groups had been held to be exempt from the zoning ordinance under RFRA.
> One
> > could argue that a court could resolve this dispute by refusing to allow the city
> to
> > enforce the zoning ordinance against the book club without giving the RFRA
> > statute a narrow construction. But is that the best result? Now other cities in the
> > state have to figure out how the state RFRA applies to their content neutral
> laws
> > that regulate speech and the extent to which exempting religious speech from
> > those laws under RFRA requires them to grant additional exemptions to other
> > speakers. It might make more sense to construe the RFRA law not to require
> > exemptions for religious speech.
> >
> > As an aside, I might add that when California was considering a state RFRA
> law,
> > proponents of the law conceded that it would not apply to content neutral
> speech
> > regulations in part because such applications would be unconstitutional.The
> > contrary argument, that RFRA would require the state and cities to privilege
> > religious speech, was a very hard sell politically.
> >
> > Alan Brownstein
> > ________________________________________
> > From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu]
> > On Behalf Of Scarberry, Mark [Mark.Scarberry at pepperdine.edu]
> > Sent: Saturday, June 20, 2009 11:18 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: "A Bible study group and a book club are not treated the same"
> >
> > Or perhaps to strike down the refusal to extend the exemption to relevantly
> > similar nonreligious speech (though I suppose Texas Monthly may be in some
> > tension with that approach)?
> >
> > Mark Scarberry
> > Pepperdine
> >
> >   _____
> >
> > From: religionlaw-bounces at lists.ucla.edu on behalf of Brownstein, Alan
> > Sent: Sat 6/20/2009 9:14 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: "A Bible study group and a book club are not treated the same"
> >
> >
> >
> > I agree with Mark that Smith allows the political process to deal with religious
> > exemptions -- as long as those exemptions do not violate any other
> constitutional
> > guarantee. It may well be that the state has a choice as to how it can respond
> to
> > a claim that it discriminates in favor of religious speech. Instead of standing by
> > the discriminatory exemption -- which would require a court to invalidate it -- it
> > could generalize the exemption to apply to all expressive meetings. But if the
> > state refuses to extend the exemption, doesn't that require a Court to subject
> the
> > exemption to strict scrutiny and, presumably, to strike it down?
> >
> > Alan Brownstein
> > ________________________________________
> > From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu]
> > On Behalf Of Scarberry, Mark [Mark.Scarberry at pepperdine.edu]
> > Sent: Saturday, June 20, 2009 6:25 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: "A Bible study group and a book club are not treated the same"
> >
> > If Smith is going to be used to justify a constitutional prohibition on religious
> > exemptions, then it is even worse than I thought. But the point of Smith, as I
> > understand it, is precisely to allow the political process to deal with requests for
> > political exemptions. To the extent that land use laws applied in a supposedly
> > neutral way would prevent religious groups from meeting, it seems that the
> > granting of an exemption by the local government would be permitted by Smith.
> > Whether the granting of such an exemption then would require that similar non-
> > religious group meetings would need to be permitted is an interesting question
> > that could affect the outcome of the political process with respect to allowing
> > exemptions for religious meetings but should not invalidate such exemptions.
> At
> > least that's my initial take.
> >
> > Mark Scarberry
> > Pepperdine
> >
> >   _____
> >
> > From: religionlaw-bounces at lists.ucla.edu on behalf of Brownstein, Alan
> > Sent: Sat 6/20/2009 5:52 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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