I am not going to belabor the point, Marty, but I strongly disagree with
your interpretation of the application of standards of review. The strict
scrutiny standard puts the courts in the business of second-guessing legislative
judgment, normally where there is a lurking constitutional violation. RFRA
strict scrutiny is not triggered by any lurking constitutional error, but rather
bare second-guessing. Trying to normalize what RFRA demands -- imposition
of a constitutional standard of review through legislation (which is only
reflected in RLUIPA) is a mistake in my view.
In this case in particular, the inadequacies of the courts are shown.
The Supreme Court was in no position to investigate whether this drug is
different from peyote, or, more importantly from my point of view, whether the
drug is routinely given to minors (as it is). Had this specific exemption
request been part of a legislative inquiry, the regular use by minors could have
been taken into account, and, I presume, the compelling interest for denying its
use documented. There was no place for such an inquiry in the
Court's appellate review. In any event, the Court is absolutely right
that the federal government asked for it, and here they have it.
Marci
In a message dated 2/21/2006 12:29:30 P.M. Eastern Standard Time,
[EMAIL PROTECTED] writes:
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