| As a bit of an aside, perhaps, the "compelling interest" standard of Korematsu, or as Bobby appropriately labeled it, "compelling interest with deference," is the standard we use rather than anything directly from Brown v. Board. Brown v. Board changed the country and indeed the law, but it generally lacks the kind of standard that can be used other than the negative one that separate is not equal. That in itself is huge, but today it is the Korematsu standard that we use across a range of cases, not Brown. And Brown did not use or even cite Korematsu. Which brings me to that interesting problem (one of many) in religious freedom cases -- what roles do equality principles play? Here, Congress is deciding that all religious practices are to be treated the same -- neutrality version of equality -- unless the state shows the compelling state interest to burden the exercise and shows that it is using the least restrictive alternative to do so. So we see a bit of Brown (not distinguishing on the basis of some classification -- not separating and treating unequally) and a lot of Korematsu. And we can't push Brown too far here because we are in fact, in accommodating diverse religious practices in some sense mandating that the institutionalized people be treated unequally (kosher food, sabbatarians, etc.). Steve On May 31, 2005, at 11:25 AM, [EMAIL PROTECTED] wrote:
-- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ ". . . Life must be understood backwards. But . . . it must be lived forwards. " Soren Kierkegaard |
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