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

Tue Jun 23 07:39:41 PDT 2009

No doubt Smith has language pointing in more than one direction.  But I would not rely on this string cite to prove anything.  This is a list of cases in which exemptions were sought, and the Court did not think about these examples any further than that.  The best evidence of this is that the district court opinion in Lukumi is on this list, an opinion they later reversed 9-0. 

In the debate over whether to file a cert petition in Lukumi, there were folks who said the Court had already decided the case in this string cite.  That was the one argument I never worried about.  They didn't know anything about the lower court cases in this string cite, and they didn't decide anything about them. 

Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:

>                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[1]> (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[2]> 
> (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[3]> (1985), 
> child labor laws, see Prince v. Massachusetts, 321 U.S. 
> 158<http://www.law.cornell.edu/supct-cgi/get-us-cite/321/158[4]> (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[5]> (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[6]>, 
> 603-604 (1983). The First 
> Amendment<http://www.law.cornell.edu/supct-cgi/get-const?amendmenti>'s[7] 
> 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
>

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

Links:
------
[1] http://www.law.cornell.edu/supct-cgi/get-us-cite/401/437
[2] http://www.law.cornell.edu/supct-cgi/get-us-cite/312/569
[3] http://www.law.cornell.edu/supct-cgi/get-us-cite/471/290
[4] http://www.law.cornell.edu/supct-cgi/get-us-cite/321/158
[5] http://www.law.cornell.edu/supct-cgi/get-us-cite/336/942
[6] http://www.law.cornell.edu/supct-cgi/get-us-cite/461/574
[7] http://www.law.cornell.edu/supct-cgi/get-const?amendmenti&gt;'s
[8] http://pr.atwola.com/promoclk/100126575x1221323000x1201367220/aol?redir=http://www.freecreditreport.com/pm/default.aspx?sc=668072&amp;hmpgID=62&amp;bcd=
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