RE: Smith and exemptions

[Brownstein, Alan]

I think David’s absolutely right that there are characteristics of religion that justify it receiving special constitutional treatment. And I certainly did not intend to suggest that we should collapse the protection of religion into the protection of speech whenever there is any speech dimension to religious activity. Most of the time the practice of religion should not be viewed as speech – but rather as the exercise of religion.   But there are situations where religious expressive activities should be treated as speech for the purposes of reviewing regulations that burden or restrict them. Drawing that line may not be that easy to do, but I think it has to be done. Some of the places where I think strong arguments can be offered to treat religious expressive activities as speech involve content neutral speech regulations, and the regulation of elections (regulations relating to voting, ballot access, campaign financing laws etc.)   Alan Brownstein   From: [EMAIL PROTECTED].ucla.edu [mailto:[EMAIL PROTECTED].ucla.edu] On Behalf Of David E. Guinn Sent: Tuesday, October 17, 2006 9:30 AM To: Law & Religion issues for Law Academics Subject: Re: Smith and exemptions   I agree with Alan's refinement of the issue -- but wonder about his solution.  If one collapses protection of religion into speech, why is religion relevant?  Are there not characteristics of religion, such as it associational or communitarian aspects, that are unique to religion? If the religion clauses have any independent, non-speech content, wouldn't that require some consideration of these non-speech factors? David E. Guinn JD, PhD   Recent Publications Available from SSRN at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608   ----- Original Message ----- From: Brownstein, Alan To: Law & Religion issues for Law Academics Sent: Tuesday, October 17, 2006 11:15 AM Subject: RE: Smith and exemptions   I think the more interesting question raised by this case – at least based on Marc’s description of it – is whether courts should provide more rigorous review of regulations burdening religious organizations or individuals when the law at issue regulates speech or voting or ballot access. If a law in any of these areas would be subject to some standard of review less than strict scrutiny when the law is applied to a secular organization or individual, would the same law be subject to strict scrutiny with regard to its application to a religious organization or individual. In light of the Court’s often stated conclusion that religion is a viewpoint of speech, does the free exercise clause require that speakers expressing religious viewpoints – particularly in the context of political campaigns – must receive greater protection for their expressive activities than speakers expressing secular viewpoints.   I think the answer to that question has to be that it does not – and that the few cases touching this issue support this answer.   Alan Brownstein   From: [EMAIL PROTECTED].ucla.edu [mailto:[EMAIL PROTECTED].ucla.edu] On Behalf Of Marc Stern Sent: Tuesday, October 17, 2006 6:58 AM To: Law & Religion issues for Law Academics Subject: RE: Smith and exemptions     Church Ferry Road Baptist Church v Higgins was a church's challenge to a Montana statute requiring disclosure of certain activities and expenditures in regard to ballot initiatives. Most of the opinion addresses free speech implications of campaign finance law regulation, but the court also addressed and dismissed the church’s claim that it could not be subject to disclosure laws on free exercise grounds. It claimed that since there were some exemptions in the statute (for newspapers and membership organizations) Lukumi required application of compelling interest analysis. The court rejected this submission, on the ground that Lukumi held that a statue was neutral and generally applicable so long as religion was not the only non-exempt category. Is that right? The Third Circuit apparently disagreed in the Newark Police cases. Marc Stern _______________________________________________ To post, send message to [EMAIL PROTECTED].ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.

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