still waiting for concrete examples

[Christopher Lund]

Thanks for the Potter case * it's a great example.  The opening lines of the district court's opinion also seem worthy of mention:
"Justice Holmes once wrote that it brought him the greatest pleasure to enforce those laws which he believed to be as bad as possible, because he thereby marked the boundary between his beliefs and the law. See Letter from Oliver Wendell Holmes to John T. Morse (Nov. 28, 1926), quoted in LOUIS MENAND, THE METAPHYSICAL CLUB 67 (2001). His faith was never tested by the Religious Freedom Restoration Act of 1993 (RFRA), Pub.L. No. 103-141, 107 Stat. 1488, (codified at 42 U.S.C. §§ 2000bb et seq.)  RFRA, by its own terms, imposes upon the courts of the United States the duty of striking sensible balances between religious liberty and competing prior governmental interests, 42 U .S.C. § 2000bb(a)(5), an obligation whose faithful performance demands the very kind of inquiry judges have tried to avoid since the advent of rational basis review in the New Deal era. See, e.g ., Williamson v. Lee Optical, 348 U.S. 483 (1955), United States v. Carolene Products Co., 304 U.S. 144 (1938)."
Ouch ...  And this skepticism runs through the opinion.  Consider another line: "The dispute in these RFRA cases-as in most RFRA cases-is precisely the sort of police power matter that is best entrusted to the politically accountable branches."   
 
And yet despite all this, the district court still found for the plaintiffs under their RFRA theory.
 
Best,
Chris
 
______________________
Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 

>>> ArtSpitzer at aol.com 6/21/2009 10:35 PM >>>

In a message dated 6/21/09 10:12:48 PM, Hamilton02 at aol.com writes:


I'm still waiting for concrete examples of very real threats to religious freedom without rfras. All examples welcome.

Marci-

I don't know whether you consider forcing a person to choose between shaving his religiously-mandated beard and losing his job to be a "very real threat to religious freedom," but my clients did, and we just won such a case in the DC Circuit under RFRA that we would have lost without it.

The appeal, Potter v. District of Columbia, 558 F.3d 542 (DC Cir 2009), turned solely on civil procedure, but the district court's decision, 2007 WL 2892685 (DDC 2007), was on the merits -- that the District of Columbia had not carried its RFRA burden of showing that a "no facial hair" rule for firefighters and EMTs was required for safety (safety being a concededly compelling interest).

The Fire Deoartment avoided losing on constitutional grounds, a la FOP v. City of Newark, by eliminating, in the middle of the case, its long-existing exemption for men who had a medical need to avoid shaving.

Art Spitzer
ACLU 


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