Second, the footnote is speaking to judicially crafted interpretations of the free exercise clause. It does not speak to the proper conditions for legislative accommodation. Proper legislative accommodation requires a weighing of the special privilege to avoid the law against the harm to the public interest. The sort of blind accommodation at the base of RFRA and RLUIPA made it impossible for members of Congress to engage in this calculus. The failure to consider the public interest and to only focus on the benefit to religion shows that the law has an improper purpose.
Marci
Sorry for not being clearer, Marci. I'm not focusing on the holding in
Locke but only on the note about expansive free exercise rights under the
Washington constitution. I thought from some earlier posts quite a while
back that you believed that religious exemptions that were not limited to
specific problems violated the Establishment Clause -- and that this was
one of your concerns with RFRA and RLUIPA. These laws created across the
board exemptions, not a situation specific exemption. They applied to too
many different activities and circumstances. (I may have gotten your
position on this wrong. Obviously, if I did the rest of my question will
not make a lot of sense.)
State constitutions that provide broader and more rigorous protection for
free exercise rights than the federal constitution seem to me to accept an
across the board standard for religious exemptions. They typically apply a
rule that requires some form of rigorous review to laws or individual
assessments that substantially burden the exercise of religion. I would
assume that if a state statute that creates an across the board exemption
violates the Establishment Clause, a state constitutional provision that is
interpreted to apply a similar exemption standard would also violate the
Establishment Clause.
I read Locke as commenting favorably on the expansive protection provided
by the Washington constitution's free exercise clause. The Court seemed to
suggest that play in the joints applied to both free exercise and
establishment clause values and that the fact that the state provided
greater protection under the state's free exercise clause than the federal
constitution required helped to justify the Court's establishment clause
holding.
I don't suggest that these state constitutional interpretations are
identical to RFRA or RLUIPA. Merely that they apply broadly to laws or
individual assessments that substantially burden the exercise of religion.
So my question is -- Do you believe that free exercise provisions in state
constitutions that provide more rigorous protection than Smith and apply
generally and broadly violate the Establishment Clause -- and if so, does
the Court's language in Locke undercut such an argument.
Alan Brownstein
UC Davis
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