Religious exemptions and undue preference for religion/Smith

[hamilton02 at aol.com]

Perry--  with respect to your last comment about Smith and Boerne, could you please point to illegal religious practices that you would want the free exercise clause to protect that are not protected under Smith?  I am interested in the actual impact of Smith.  I can tell you that Smith has been crucial in freeing child abuse and disabled adult abuse victims from church practices and control.  In other words, it has fueled a civil rights move for children and disabled adults, the most vulnerable in our society.  The more I have seen Smith in practice, the more convinced I have been of its fundamental soundness. 
 I would welcome examples from others as well, of course.

Marci

Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Cardozo School of Law
Sent from my Verizon Wireless BlackBerry

-----Original Message-----
From: Perry Dane <dane at crab.rutgers.edu>

Date: Mon, 23 Mar 2009 00:17:59 
To: <religionlaw at lists.ucla.edu>
Subject: Religious exemptions and undue preference for religion


Eugene,

         I wonder if you're reading the court's footnote too 
broadly.  When the court says that "granting an exception to 
Cornerstone (or perhaps all parochial schools) based on the theory 
that the free exercise claims elevate Cornerstone (or all parochial 
schools) to a higher status than secular nonpublic schools-would be 
equally unacceptable under federal law," it might simply mean that 
such an exception would be "unacceptable" as a requirement of free 
exercise doctrine, not that it would be unconstitutional if required 
by a legislature.

         Even if the court did mean more than that, note that what 
Cornerstone is asking for is far removed from any sort of 
paradigmatic religion-based exemption.  Whatever burden the 
government is imposing on free exercise here is quintessentially 
"indirect."  Moreover, while I'm no great friend of the 
burden-benefit distinction, there surely are some free exercise 
claims, particularly when they involve alleged right to benefits 
rather than defenses against burdens, that are not only off the 
tracks on free exercise grounds but jump the tracks, so to speak, to 
the point of raising establishment clause concerns.  For example, it 
seems to me that if Mrs. Sherbert's religion not only forbade work on 
Saturdays but any work at all, and also forbade contributing to the 
unemployment insurance fund, her claim to unemployment benefits 
would, had it been accepted by the State, actually have raised the 
specter of an unconstitutional religious preference.  And I say this 
as someone who believes in a vigorous free exercise clause and 
continues to lament Smith and City of Boerne.

                         Perry



*******************************************************
Perry Dane
Professor of Law

Rutgers University
School of Law  -- Camden
217 North Fifth Street
Camden, NJ 08102

dane at crab.rutgers.edu
Bio: www.camlaw.rutgers.edu/bio/925/
SSRN Author page: www.ssrn.com/author=48596

Work:   (856) 225-6004
Fax:       (856) 969-7924
Home:   (610) 896-5702
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