Perry-- with respect to your last comment about Smith and Boerne, could you please point to illegal religious practices that you would want the free exercise clause to protect that are not protected under Smith? I am interested in the actual impact of Smith. I can tell you that Smith has been crucial in freeing child abuse and disabled adult abuse victims from church practices and control. In other words, it has fueled a civil rights move for children and disabled adults, the most vulnerable in our society. The more I have seen Smith in practice, the more convinced I have been of its fundamental soundness. I would welcome examples from others as well, of course.
Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Cardozo School of Law Sent from my Verizon Wireless BlackBerry -----Original Message----- From: Perry Dane <d...@crab.rutgers.edu> Date: Mon, 23 Mar 2009 00:17:59 To: <religionlaw@lists.ucla.edu> Subject: Religious exemptions and undue preference for religion 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. _______________________________________________ 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.