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 ******************************************************* _______________________________________________ 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.