A Concrete Example

[Sisk, Gregory C.]

Actually, on the question of government responsiveness to religious liberty, I think everyone is right - as contradictory as that might sound at first.

As one of those former government attorneys (in the Civil Division at the Department of Justice), I quiet agree with Marci Hamilton that government lawyers typically take religious liberty quite seriously.  My experience with government decision-makers, whose decisions were the subject of my court work, is similar.  Indeed, as we know, many religious liberty disputes that are resolved early and amicably, although intervention by a lawyer for the religious claimant sometimes is necessary to ensure that serious attention is paid.  Even when everyone is acting in good faith, the prospect of a RFRA or parallel statutory claim may well serve to focus attention and make sure that every voice, especially the minority voice, is heard.

In addition, and I speak from personal experience here as well, Steve Jamar thoughtfully explains that government decision-makers and lawyers sometimes do not fully appreciate the religious perspective, because it takes time (and, to use that word made famous recently, a degree of empathy) that business decision-makers and litigators may not have or be willing to devote to what appears to be a minor dispute or idiosyncratic behavior.  Moreover, by the nature of their role, government decision-makers and even more so government lawyers tend to approach their work leaning in favor of collective and uniform rules and government interests.  By contrast, judges by their role, when so empowered by a statute like RFRA, are able to look more objective and, yes, more empathetically, at the effect of a government policy or program or rule on all actors.

And, yes, Doug Laycock is also right in saying that some government decisions may not care about religious liberty.  Even if Marci is correct (and I think she is) that most government lawyers and decision-makers act in good faith with an intention, even if not always well informed, to take religious liberty seriously, there are exceptions and there are regional and cultural differences.  And those exceptions are especially likely to give rise to religious liberty disputes.  In a Smith regime in which no reason or justification need be offered for a uniform rule, the callous bureaucratic minded government functionary need not be responsive to religious liberty concerns and, if the religious believers is from a minority, may not need be concerned about any majoritarian public outcry from such insensitivity.  In addition, the responsiveness of a political majority to the needs of a minority may shift from region to region depending on who is in the majority, thus meaning, for example, that a traditionalist Muslim or Christian probably need not worry about government imposition in rural Georgia but may encounter more serious obstacles in San Franciso.  If we believe that religious liberty ought to be enjoyed by every American, whether or not she lives in a community with a typically fair-minded government or not, then RFRA serves to ensure the benefits of religious liberty more equally across the country and through the mix of rural, suburban, and metropolitan areas even within a single state.

Greg Sisk

Gregory Sisk
Orestes A. Brownson Professor of Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcsisk at stthomas.edu
http://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

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