Are you asking that we (a) assume that Sherbert/Yoder applies and (b) that Sherrod has met his burden of showing a substantial burden on religious exercise, or just (a)?
-----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Thursday, July 31, 2008 3:47 PM To: Law & Religion issues for Law Academics Subject: Religious freedom and 42 USC 666 Sherrod v. Tenn. Dep't of Human Servs., 2008 WL 2894691 (Tenn. Ct. App.), involves a father who refused to pay his child support, partly because "Mr. Sherrod states that he is a Born Again Christian and a Sunday School teacher and that he is greatly disturbed that DHS is attempting to compel him to submit to an order which relies for its authority upon a federal statute, 42 USC sec. 666. He cites us to the Book of Revelations, where the number 666 is associated with the 'Mark of the Beast' and the end of days." Assume Sherrod is sincere, not implausible given his willingness to fight the matter at trial and on appeal over $1,188 in arrearages (granted, he's litigating pro se, but this presumably has taken a good deal of time and effort, and some money, on his part). Assume also that a strict scrutiny regime applies. (Whether because Sherrod didn't raise RFRA or whether because for some reason RFRA is inapplicable givne the procedural posture, this particular court applied the Smith approach.) Should Sherrod prevail? I take it that the government could just reenact 42 USC sec. 666 as 42 USC sec. something-else, and thus alleviate the burden on Sherrod's religion; does that make enforcing 42 USC 666 not the least restrictive alternative? Or are alternatives that involve having Congress take the time and effort to renumber a statute (or enact a duplicate copy) just too burdensome to be considered as part of the least restrictive alternative inquiry (or are otherwise improper for consideration). I should say, by the way, that I don't think Sherrod should win as a matter of principles, nor do I think it likely that he would in fact win even under a RFRA-like regime. But that's partly because I support Smith, and while I support statutory RFRAs, I think strict scrutiny is the wrong standard for them to use. So I wanted to probe what ought to happen under a Sherbert/Yoder regime, as honestly applied. Eugene _______________________________________________ To post, send message to Religionlaw@lists.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. _______________________________________________ To post, send message to Religionlaw@lists.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.
