Eugene,
I wonder if you're reading the court's footnote too
broadly. When the court says that "granting an exception to
Cornerstone (or perhaps all parochial schools) based on the theory
that the free exercise claims elevate Cornerstone (or all parochial
schools) to a higher status than secular nonpublic schools-would be
equally unacceptable under federal law," it might simply mean that
such an exception would be "unacceptable" as a requirement of free
exercise doctrine, not that it would be unconstitutional if required
by a legislature.
Even if the court did mean more than that, note that what
Cornerstone is asking for is far removed from any sort of
paradigmatic religion-based exemption. Whatever burden the
government is imposing on free exercise here is quintessentially
"indirect." Moreover, while I'm no great friend of the
burden-benefit distinction, there surely are some free exercise
claims, particularly when they involve alleged right to benefits
rather than defenses against burdens, that are not only off the
tracks on free exercise grounds but jump the tracks, so to speak, to
the point of raising establishment clause concerns. For example, it
seems to me that if Mrs. Sherbert's religion not only forbade work on
Saturdays but any work at all, and also forbade contributing to the
unemployment insurance fund, her claim to unemployment benefits
would, had it been accepted by the State, actually have raised the
specter of an unconstitutional religious preference. And I say this
as someone who believes in a vigorous free exercise clause and
continues to lament Smith and City of Boerne.
Perry
*******************************************************
Perry Dane
Professor of Law
Rutgers University
School of Law -- Camden
217 North Fifth Street
Camden, NJ 08102
d...@crab.rutgers.edu
Bio: www.camlaw.rutgers.edu/bio/925/
SSRN Author page: www.ssrn.com/author=48596
Work: (856) 225-6004
Fax: (856) 969-7924
Home: (610) 896-5702
*******************************************************
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