Re: RLUIPA Unanimously Upheld in Cutter

[Steven Jamar]

This very paradox -- and the problems of the limits of logic and language in the law -- was the main impetus for an article I wrote some years back about how RFRA could not be interpreted or applied in a literal way.  Instead, there is an inherent sliding scale of compellingness of the interest the the restrictiveness of the standard that varies with context -- a point made explicitly by Ginsburg in this opinion (p. 12). The rhetorical mismatch is unfortunate and unnecessary as a matter of logic and language -- Congress could have explicitly adopted some other standard, but politics being what they are, this was probably the best that could be done. I find very interesting that the concern some of us have had that the Court would say that Congress simply cannot set standards of interpretation for freedoms like this has been answered as at least a number of us hoped and expected -- there is play in the joints -- while Congress cannot set the minimum of protection (cannot change the Court's interpretation of the 1st amendment, Congress can, so long as it respects those minimum standards, set other standards -- here, there is room to play between the free exercise and establishment constitutional standards. Steve On May 31, 2005, at 11:47 AM, Marty Lederman wrote: Well, this has been the paradox in Free Exercise Clause law all along, hasn't it?:  That the Court articulated a strict scrutiny test in Sherbert/Yoder, but never came anywhere close to applying such a test in the free-exercise context:  The government virtually always won, by hook or by crook (no substantial burden; compelling interest; carve-outs for prisons/military/government "property," etc.).  (That's one primary explanation for Smith itself -- the Court no doubt wished to call a halt to its own charade.)  Congress adopted the Court's own strict-scrutiny rhetoric, while signaling fairly clearly that courts should be just about as deferential to the state as the SCOTUS itself had been in pre-Smith Free Exercise cases.  The strict scrutiny standard thus has the (intended) deterrence/in terrorem effect at the administrative level -- at the very least deterring states from denying exemptions where the harm is speculative, or where there really would be very little cost involved, such as where the state makes analogous no-religious exemptions.  But if the state has a good reason for denying the exemption, it likely will win in litigation.  That's what has happened at the federal level, with modest results that all parties appear to approve.   The real test of how effective RFRA and RLUIPA will be will come in next Term's UDV case involving the application of that statutory test to the prohibition on use of hoasca tea. --  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/ "Example is always more efficacious than precept." Samuel Johnson, 1759

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