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

Christopher Lund lund at wayne.edu
Wed Feb 15 11:55:06 PST 2012


Similar question: Eugene, how would you today decide Sherbert v. Verner,
with its "good cause" requirement?

 

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Wednesday, February 15, 2012 2:32 PM
To: Law & Religion issues for Law Academics
Subject: RE: Laws with exceptions as triggering strict scrutiny -- and as
failing strict scrutiny because of their underinclusiveness?

 

Eugene,

 

I will try to respond to your hypos later today, but here is a
non-hypothetical question: Do you think Fraternal Order of Police v.
Newark was correctly decided?

 

Best,

Mark

 

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, February 15, 2012 9:44 AM
To: Law & Religion issues for Law Academics
Subject: RE: Laws with exceptions as triggering strict scrutiny -- and as
failing strict scrutiny because of their underinclusiveness?

 

                Mark:  A few hypotheticals:  (1)  Say that a state
provides that adequate provocation makes killing manslaughter rather than
murder, and that a particular set of behaviors - having sex with the
defendant's spouse, having just beaten a defendant (but in a situation
where the peril is over and no self-defense is allowed), and some other
things - qualify as adequate provocation.  And say that this defense is
indeed used in dozens of cases a year.  Someone kills someone for what he
perceives is blasphemy, and argues that his religious sense of provocation
should be treated the same as the provocation in the adultery, assault,
etc. examples, so that he would be guilty only of manslaughter rather than
murder.  He argues that this presumptively entitles him to an exemption,
and that it indeed the presumption can't be rebutted under strict scrutiny
because murder law is underinclusive.

 

                (2)  Someone feels a religious obligation not to testify
against his children or parents, or against coreligionists, or in other
contexts.  He points to all the privileges recognized as defenses to the
duty to testify, and argues that these exceptions presumptively entitle
him to an exemption, and that indeed the presumption can't be rebutted
under strict scrutiny because the duty to testify is underinclusive.

 

                (3)  Someone feels a religious obligation not to hire
women to work together with men, or not to hire women with small children
at home.  He points to the BFOQ exemption and to the exemption for small
employers, both of which would exclude many more employees from Title
VII's protection than would his proposed exemption.  He argues that these
exceptions presumptively entitle him to an exemption, and that indeed the
presumption can't be rebutted under strict scrutiny because
antidiscrimination law is underinclusive.

 

                (4)  Someone feels a religious obligation to spread the
word of God for free; that word happens to be in a book whose copyright is
owned by others.  His claim isn't just to a right to do this in church,
but to a right to do this everywhere.  He points to the many exceptions
from copyright law, from 17 USC 107 to 17 USC 122 (each of the sixteen
sections contains at least one exemption).  He argues that these
exceptions presumptively entitle him to an exemption, and that indeed the
presumption can't be rebutted under strict scrutiny because copyright law
is underinclusive.

 

                Is it really the case that all these laws should be
subject to strict scrutiny - especially given that the underinclusiveness
prong of strict scrutiny might well make the laws invalid under such a
test?

 

                My thinking is that the answer is no.  Most laws involve
the reconciliation of competing interests, including competing private
interests that the government is trying to protect; and I don't think that
the fact that someone has a religious motivation to do something
constitutionally entitles him to the best treatment available to others.
That my rights as a copyright owner are limited in some ways to serve
rival concerns doesn't mean that there's a constitutional obligation on
the government's part to limit them further in order to serve some
people's view of what God demands - a view that is not my view, and to
which my rights should not, I think, bend.  But whatever one might think
of this as a matter of first principles, it seems to me that this "most
favored nations" approach likely yields results, in cases such as the ones
I described above, that are rightly seen as improper.

 

                Eugene

 

 

 

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Wednesday, February 15, 2012 9:16 AM
To: Law & Religion issues for Law Academics
Subject: RE: Laws with exceptions as triggering strict scrutiny -- and as
failing strict scrutiny because of their underinclusiveness?

 

Paul rightly asks us to consider more than just formalism. History is
important, and I think the concern about freedom of the church goes back
at least to Pope Gregory (?) in the 11th (?) Century. Cf. Antigone.

 

I've suggested elsewhere that a historical approach to what constitutes
free exercise might help us understand it. But here is some more somewhat
formalistic analysis:

 

I have always understood the general applicability test to involve a kind
of most favored nations concern. Are other exceptions allowed to undercut
the basis purpose of a law to roughly the same degree that a religious
exception would undercut it? If so, the law is not of general
applicability. For example, if a prohibition law permitted sale and
consumption of beer it would need to permit sale and consumption of wine
for communion or for Shabbat or Passover dinners. If there is a copyright
law exception for fair use of music in schools, then an exception must be
made for church services. Justice (then Judge) Alito made this point in
Fraternal Order of Police v. City of Newark (3d Cir. 1989):

 

"Because the Department makes exemptions from its policy for secular
reasons and has not offered any substantial justification for refusing to
provide similar treatment for officers who are required to wear beards for
religious reasons, we conclude that the Department's policy violates the
First Amendment."

 

I think that this is a kind of mid-level under-inclusiveness requirement,
but one that is used not in applying a level of scrutiny but in deciding
what level of scrutiny to apply. From Lukumi Babalu Aye v. City of
Hialeah:

 

"The ordinances are underinclusive for those ends. They fail to prohibit
nonreligious conduct that endangers these interests in a similar or
greater degree than Santeria sacrifice does. The underinclusion is
substantial, not inconsequential."

 

Thus the prohibition on animal sacrifice was not generally applicable. I
realize that there is other language in the case that focuses on the
targeting of religious conduct, on the point that practically the only
conduct prohibited was religious. Yet I think the quoted principle
captures the basic meaning of "generally applicable."

 

Of course all of these concepts are somewhat manipulable. What is the
purpose of laws against murder? To prevent killing? To prevent unjustified
killing? To protect the innocent? Under some of these formulations a
defense of self-defense could make a murder law not generally applicable
in a formalistic sense. But of course our history will prevent murder laws
from being invalidated with respect to human sacrifice, even of a
volunteer. You might say that background legal principles frame the
analysis. We value innocent life. Thus historically we have permitted
private self-defense against attackers, but we do not otherwise allow the
private intentional killing of a human being except where there is not
enough time to get the govt involved. If unenumerated but firmly
historically rooted rights (e.g, some parental rights) are
constitutionally protected under Due Process, as I think even Justice
Scalia accepts, then it makes some sense to consult history as we try to
understand a right specifically enumerated in the First Amendment. Almost
all legal concepts are manipulable, but that does not mean they are
useless. And even laws not of general applicability will be enforceable
against religious conduct if the govt interest is strong enough, which
gives us an out from a too-formalistic application of the requirement.

 

I suppose a historical approach might have led to a different result in
Lukumi. That may cut against it. Animal sacrifice has been seen for quite
a long time to be foreign (literally) to the exercise of religion in the
US. (A cousin told me of an animal sacrifice done next to her condo
building by some middle-eastern immigrants to cleanse the building of the
effects of a suicide. The immigrants were neither Jewish nor mainstream
Muslim, as I understand it.) Yet we do eat animals in celebrations that
have religious or cultural significance (e.g., Thanksgiving turkey). We
even grant mercy to such animals at times. Consider presidential pardons
of Thanksgiving turkeys. And there is a need to adjust historical analysis
to protect religions that are new to our society. Perhaps the general
applicability requirement would help us do the needed historical
adjustment.

 

Best,

Mark

 

Mark S. Scarberry

Professor of Law

Pepperdine Univ. School of Law

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