In a real sense this is *not* a case holding that "the
government may not ban" a religious practice (to use the language quoted
from the very valuable SCOTUS blog). Instead, it is a case in which the
government has, by enacting a statute (RFRA), *chosen not to ban* a
religious practice. RFRA amends the otherwise applicable statute that would
otherwise ban the practice. We may argue about what RFRA means, about how to
apply it to different factual settings, and about whether it is
constitutional (though that seems to be decided now). But whatever RFRA means,
Congress chose to enact it and thus chose not to ban those practices that are
protected under RFRA.
Mark S. Scarberry
Pepperdine University School of
Law
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Tuesday, February 21, 2006 8:57 AM
To: Law & Religion issues for Law Academics
Subject: RE: Breaking news in federal RFRA case
This is a RFRA case, not a free exercise case, so it does
not affect Smith. But it does show that the Court is willing to take RFRA
seriously and enforce it according to its terms. It may also have a
persuasive effect on state courts interpreting state RFRAs.
Douglas Laycock
University of Texas Law
School
727 E. Dean Keeton St.
Austin, TX 78705
512-232-1341
(phone)
512-471-6988
(fax)
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad M Pardee
Sent: Tuesday, February 21, 2006 10:26 AM
To: Law & Religion issues for Law Academics
Subject: Re: Breaking news in federal RFRA case
Does this decision affect Employment Division Vs. Smith? The quote below makes it sound like it is revisiting the same issue. One can only hope!
Brad
Mark Tushnet wrote on 02/21/2006 09:12:53 AM:
> "the Court ruled unanimously that the government may not ban a religious
> from using a herbal tea that contains a substance that the government
> considers to be harmful. The Chief Justice wrote the opinion. Only new
> Justice Samuel A. Alito, Jr., did not take part." -- from SCOTUS Blog
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