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

[Douglas Laycock]

The compelling interest test applies when there are secular exceptions, or exceptions for other religions, but no exception for the religion that is complaining that it has not been accommodated. 

Quoting Steven Jamar <stevenjamar at gmail.com>:

> Smith says any generally applicable neutral law (one not targeting religion)
> need only pass rational basis, no matter what the effect on religion.
>  Marci, do you really not see the potential for significant governmental
> impinging on religion from this?  Or do you think all laws will have
> exceptions and accommodations written into them?  If the latter is true,
> then it seems that there would be relatively few impacts under a non-RFRA
> Smith regime.
> But isn't that really what RFRA does?  That is,
> it puts accommodating exceptions into laws when they substantially
> affect religious exercise without the need to write such exceptions
> into every law?
>
> I'm not quite sure what this phrase by Doug means -- "If the opinion means
> what it says, and the compelling interest test applies to any law that has
> exceptions, then there aren't so many
> examples."  Why does the compelling interest test apply when there are
> exceptions?  Don't the exceptions do the accommodation without a high
> standard of review?  Sorry.  Maybe I'm just having trouble because it
> is late.
>
> Steve
>
> On Mon, Jun 22, 2009 at 11:24 PM, Douglas Laycock <laycockd at umich.edu>wrote:
>
>> How many examples there are depends on what the Supreme Court finally says
>> that Smith means.  If Marci gets her way, and Smith requires anti-religious
>> motive that can be proved in court, then there are many examples.  If the
>> opinion means what it says, and the compelling interest test applies to any
>> law that has exceptions, then there aren't so many examples.  Legislative
>> exceptions are very common, and when there are no exceptions, there is often
>> a compelling state interest -- that's why they refused all exceptions.
>>
>> But even if no exceptions is the standard, there are still examples.  The
>> fire fighter case we have been discussing is one.  Barr v. City of Sinton is
>> another.   RFRAs also simplify the litigation even in cases where there are
>> exceptions that would support a free exercise claim.
>>
>> Quoting Hamilton02 at aol.com:
>>
>> >
>> > I'm still waiting for concrete examples of very real threats to religious
>> > freedom without rfras.  All examples welcome.
>> >
>> > Marci
>> >
>> > In a message dated 6/21/2009 6:32:23 P.M. Eastern Daylight Time,
>> > bp51414 at windstream.net writes:
>> >
>> > It may also be said that most citizens in states with rfras have little
>> > idea that there are very real threats to their religious freedom that
>> make
>> > rfras necessary.
>> >
>> > Brad
>> >
>> >
>> >
>> >
>> >
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>> >
>>
>>
>>
>> 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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>
>
>
> --
> Prof. Steven Jamar
> Howard University School of Law
> Associate Director, Institute of Intellectual Property and Social Justice
> (IIPSJ) Inc.
>

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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