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Marci: I did not say that all
statute-specific accommodations are unconstitutional. Far from it. I
think, for instance, that the title VII exemption at issue in Amos is
constitutional (at least as applied to nonprofit employers), as are the peyote
exemptions, as is the post-Goldman military accommodation, etc.
And I think some accommodations are unconstitutional, such as those at issue in
Zorach, Texas Monthly, CHILD, and Thornton v.
Caldor. Those that do not, in my view, pass muster are,
e.g., those that do not alleviate significant,
government-imposed burdens on religious exercise, those that do impose
significant burdens on other private parties, those that violate the
Free Speech Clause, and those that are a form of sect-discrimination. RFRA
and RLUIPA do not share these faults, and they have the added virtue of ensuring
that the legislature treats all comparable burdens on religious liberty with
equal regard (thereby addressing, e.g., Souter's concern in Kiryas
Joel).
So, Marty, would you say that the peyote exemptions cited with approval in Smith are unconstitutional, while the acros-the-board exemptions are not? I'm just wondering if you can provide an example of an exemption that you think should not pass muster? Marci
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