Laws with exceptions as triggering strict scrutiny -- and as failing strict scrutiny because of their underinclusiveness?

Marci Hamilton hamilton02 at aol.com
Wed Feb 15 05:54:31 PST 2012


A side note on some of the discussion --As someone who was clerking at the Court the Term that Smith was decided, I find it jarring to hear law professors talk about Smith as though only one Justice either wrote it or voted for it.   
That is not how cases are decided or majorities reached

Marci

On Feb 15, 2012, at 7:34 AM, Steven Jamar <stevenjamar at gmail.com> wrote:

> I agree with Eugene?!  Wow!  :)
> 
> "Law of general applicability" was again Scalia shooting from the hip, as he makes quite clear in his concurrence in Hialeah.  It could mean, in theory, any number of things including:
> 
> 1.  Any exception for any reason makes it not general (self defense for murder is an exception to murder)
> 2.  Any exclusion of anyone or inclusion of only a set of people makes it not general (federal employment discrimination laws applying only to businesses exceeding a certain size)
> 3.  Any categories or degrees of sanction (killing someone -- murder 1, murder 2, manslaughter, vehicular homicide, etc.) would make it not general.
> 
> These were not what the court meant nor could they be.
> 
> So we now move to arguably more plausible meanings -- all of which require that the exception or law itself concern religion in some special way.
> 
> 4.  A law with a religious exception is no longer general (Title VII)
> 5.  A law that targets only religion intentionally in an affirmative way (benefits religion; e.g., only churches (but not other organizations) are tax exempt (I know of no such law).
> 6.  A law that in fact (but not in language) benefits only or almost exclusively religion (many school voucher programs)
> 7.  A law that targets religion for special negative treatment (Lukumi v. Hialeah).
> 
> The copyright act includes dozens if not hundreds of exceptions, including one for religion.  Do those dozens of exceptions make it subject to strict scrutiny anytime any provision burdens religion (RFRA aside for now)?  Or would it be substantially burdens (in which case we do have RFRA to consider)?
> 
> Assuming the answer to the prior questions is "no", then do we make it not generally applicable because it grants religions a particular use exception for public performances of certain types of copyrighted works in a religious service?  
> 
> That cannot be what generally applicable means.  And it is not what either Kennedy's opinion or Scalia's concurrence in Hialeah say it means.  Scalia specifically says that what he meant in Smith was that anything that accommodates religion in an beneficial (to the religion) way is ok and doesn't make the law non-neutral nor non-general.  And what he (obviously to Scalia himself) meant was that only those laws which discriminate against religion (target religion for differential negative treatment) are not general, e.g., Hialeah.
> 
> Scalia's phrasing in Smith was stupid when he said it and is no better today.  But we can be fully confident that the current accommodationalist/exceptionalist regime that resulted from Smith (and other causes as well) is constitutional under the first amendment free exercise and legal under RFRA.  And as the court makes clear in Hialeah, it is also not subject to establishment challenge. (One can imagine some scheme that even this court would say accommodates to the point of establishment, I suppose, but not the current general accommodationist approach to our statutory and regulatory mode.)
> 
> Steve
> 
> 
> On Mon, Feb 13, 2012 at 2:10 PM, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:
>                 I’m with Jim in what I see as his skepticism as to the suggestion that exceptions from a law make it not “of general applicability” for Free Exercise Clause purposes.  (I realize that some post-Smith cases take this view, but I think they are mistaken.)  A vast range of laws, probably most laws, have some exceptions.  Killing people is murder, except in self-defense or defense of others or in executing a lawful order or in fighting lawfully in war or (in some jurisdictions) under duress or if you’re adequately provoked (in the latter case it’s still a crime but not murder).  Title VII’s ban on sex discrimination has exemptions for small employers and for BFOQs.  The duty to testify has exceptions galore.  So does copyright law.  So does contract law.  Statutory rape law in many states has exceptions for a minor’s spouse, or people close in age to the minor.  Trespass law has exceptions for necessity, for easements by prescription, for permissible government action, and more.
> 
>  
> 
>                 Are all these laws therefore not covered by Smith?  (What really is left then for Smith?)  What’s more, if the exceptions make the law not of general applicability, and thus trigger strict scrutiny, wouldn’t they also make the law underinclusive, and thus make it fail strict scrutiny – so that religious objectors would get exemptions from murder law, trespass law, copyright law, contract law, statutory rape law, trespass law, the duty to testify, and so on? 
> 
>  
> 
>                 Eugene
> 
>  
> 
> From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of James Edward Maule
> Sent: Monday, February 13, 2012 10:55 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: The contraception mandate under Empoyment Division v Smith
> 
>  
> 
> I have a question about laws of general applicability. More than a few posts ago, someone – I apologize for not remembering who – gave the speed limit law as an example of a law of general applicability. I recall the point was that even if a person or religious organization had a religious reason for violating the speed limit, the claim would fail.
> 
>  
> 
> Thus, I wonder about the argument being made by the Becket Fund. The speed limit set by the speed limit law (a) does not apply to everyone (e.g., emergency vehicles), (b) [can’t think of an analogy], and (c) provides for a system of individualized exemptions in the form of permits issued to allow violation of the minimum speed requirement for transporting certain large objects (and I think there are some instances where permits can be obtained to exceed the stated maximum).
> 
>  
> 
> Thus, I wonder, are these the tests for finding a law not to be of general applicability?
> 
>  
> 
> Jim Maule
> 
>  
> 
> 
> -- 
> Prof. Steven Jamar
> Howard University School of Law
> Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ)
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