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I didn't intend to suggest anything otherwise -- I
believe we're in agreement, and apologize for any confusion. Where we
might disagree is on the question of whether "strict" scrutiny was ever
all-that-strict in Free Exercise/RFRA/RLUIPA law.
----- Original Message -----
Sent: Tuesday, May 31, 2005 2:08 PM
Subject: RE: RLUIPA Unanimously Upheld in
Cutter
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.
----- Original Message -----
Sent: Tuesday, May 31, 2005 11:20
AM
Subject: Re: RLUIPA Unanimously Upheld
in Cutter
One might also
note we now have another area of law (in addition to affirmative action)
where compelling interest seems no longer shorthand for the individual
rights claim (almost) always wins.
MAG
What a fascinating opinion. J. Ginsburg upholds strict scrutiny
with respect to prison regulations, but at the same time demands deference
to prison authorities, as does RLUIPA. At the very end, she seems
to caution all lower courts to be very careful before they find
for the prisoner. Seems to me the prisons now have a Turner v.
Safley rule in fact, even if it is an RLUIPA federal claim in
theory.
One interesting aspect of the opinions is J. Thomas's reservation
of the issue of Congress's power under either the Spending or Commerce
Clauses. He seems to withdraw any concerns about spending at the
end of his concurrence, though, which leaves the question whether
RLUIPA is valid under the Commerce Clause up front and center for RLUIPA in
both the prison and land use contexts. Obviously, further litigation
to come.
Marci
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