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

[Volokh, Eugene]

               Hmm - does Smith really say that the compelling interest test applies to any law that has exceptions?  After all, consider the majority's list of counterexamples:

The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind -- ranging from [p889] compulsory military service, see, e.g., Gillette v. United States, 401 U.S. 437<http://www.law.cornell.edu/supct-cgi/get-us-cite/401/437> (1971), to the payment of taxes, see, e.g., United States v. Lee, supra; to health and safety regulation such as manslaughter and child neglect laws, see, e.g., Funkhouser v. State, 763 P.2d 695 (Okla.Crim.App.1988), compulsory vaccination laws, see, e.g., Cude v. State, 237 Ark. 927, 377 S.W.2d 816 (1964), drug laws, see, e.g., Olsen v. Drug Enforcement Administration, 279 U.S.App.D.C. 1, 878 F.2d 1458 (1989), and traffic laws, see Cox v. New Hampshire, 312 U.S. 569<http://www.law.cornell.edu/supct-cgi/get-us-cite/312/569> (1941); to social welfare legislation such as minimum wage laws, see Susan and Tony Alamo Foundation v. Secretary of Labor, 471 U.S. 290<http://www.law.cornell.edu/supct-cgi/get-us-cite/471/290> (1985), child labor laws, see Prince v. Massachusetts, 321 U.S. 158<http://www.law.cornell.edu/supct-cgi/get-us-cite/321/158> (1944), animal cruelty laws, see, e.g., Church of the Lukumi Babalu Aye Inc. v. City of Hialeah, 723 F.Supp. 1467 (S.D.Fla.1989), cf. State v. Massey, 229 N.C. 734, 51 S.E.2d 179, appeal dism'd, 336 U.S. 942<http://www.law.cornell.edu/supct-cgi/get-us-cite/336/942> (1949), environmental protection laws, see United States v. Little, 638 F.Supp. 337 (Mont.1986), and laws providing for equality of opportunity for the races, see, e.g., Bob Jones University v. United States, 461 U.S. 574<http://www.law.cornell.edu/supct-cgi/get-us-cite/461/574>, 603-604 (1983). The First Amendment<http://www.law.cornell.edu/supct-cgi/get-const?amendmenti>'s protection of religious liberty does not require this.

            Every one of these is riddled with exceptions, no?  Even peyote bans could be said to have exceptions (for instance, for law enforcement purposes, or perhaps for research), depending on how you decide what's the rule and what's an exception (itself not a determinate inquiry, it seems to me).

               Eugene

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, June 22, 2009 8:25 PM
To: religionlaw at lists.ucla.edu
Subject: Re: "A Bible study group and a book club are not treated the same"


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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