I think the discussions of Snowball and Marci's post reflect two very different kinds of religious liberty issues. Marci, and others who express concerns about religious liberty exemptions, often focus on situations where the state has a very strong interest in denying the exemptions that are sought. I have no doubt that some claims for religious exemptions should be and will be denied and understand why people would support a standard of review that permits such denials to be upheld if they are challenged.
I, and others on this list who criticize Smith and support some form of meaningful review of neutral laws of general applicability that substantially burden religious practice, focus on situations where exemptions are denied for trivial and unpersuasive reasons (assuming that one accepts that the burdening of religious exercise constitutes a serious cost) or invidious or discriminatory motives. Marci's position is, I think, that these situations are rare and that they can always be satisfactorily resolved through political channels without the need for judicial intervention. I believe these situations are more common, that they are not always successfully resolved politically, and that the burden of resolving them politically has its own problems and consequences. But whether one agrees with my assessment or not on this latter issue, this issue has little if anything to do with the first issue - religious liberty claims that conflict with important state interests that may justify their denial. The merits of one's position on the first issue do not respond to or serve as a counterpoint to the second issue. The Ninth circuit standard in Snowball, in my judgment, precludes RFRA review when government takes away or prevents access to physical things that have religious significance or are needed for religious exercise. That can be land, a religious object, or even the human body. By focusing on coercion through penalties, Snowball ignores the other powers that government may exercise that interfere with religious freedom by using, controlling or preventing access to the physical world. If a state prison refuses to deliver rosary beads that are sent to an inmate and returns them to the sender, no one is ordered to act in a way that is inconsistent with his faith or punished for his religious practice. If an autopsy is performed in violation of a family's religious beliefs, no one is ordered to act in a way that is inconsistent with his faith or punished for his religious practice. If sacred land is desecrated, no one is ordered to act in a way that is inconsistent with his faith or punished for his religious practice. I think these situations are concrete. The fact that some of them may seem unusual to many people simply reflects the reality that they involve the religious beliefs of faiths with fewer members - which is one of the reasons why they are more likely to be ignored or considered inconsequential by government. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, June 15, 2009 11:32 AM To: jb...@politics.tamu.edu; religionlaw@lists.ucla.edu Subject: Re: Snowbowl decision After thinking more about Judy's comment, it hit me that the discussion of Snowbowl really seems surreal to me. The Snowbowl claim was esoteric, shall we say? I don't doubt sincerity, but when one compares a claim to have artificial snow made of a certain type of water against child abuse, it is jarring. There are lots of decisions far more troubling. Take, for example, the Wis Supreme Court's decision in Pritzlaff (rejecting tolling of statutes of limitations for victims of clergy based on the First Amendment but no other victims) remain standing, the issue seems precious. I raise the clergy abuse issue because it is being litigated over and over again, with real world consequences. And now that the Latter-Day Saints have joined the Catholic Church in Oregon in heavily lobbying against statute of limitations reform for child sex abuse victims, I guess we know who has serious problems in this context and why the issue is not going away anytime soon.... Tom mentions Mockaitis. Would Mockaitis have been decided differently under the Snowbowl reasoning, if taken in the context of the 9th Cir's precedents in general on the burden issue? For me, the Mockaitis decision goes way too far, seeming to say that there is an impregnable privilege around confession that might even extend to situations where a member of the clergy knows about a murder or incest that is going to happen in the future. But that is I suppose a question of government interest rather than burden? Anyway-- I'm interested in other concrete examples of practices that should be protected that would not be under the Snowbowl rule.... (This request has no time limit-- I've been waiting several months for listserv members to provide examples of religious practices that have been burdened and prohibited that should have been protected since Smith was decided....). Where I'm sitting, Smith has been the means of liberation for the vulnerable, but I am always interested in knowing what is actually happening on the ground to test my conclusions. Marci In a message dated 6/15/2009 11:47:02 A.M. Eastern Daylight Time, jb...@politics.tamu.edu writes: I prefer facts to ignorance Marci So do I, Marci, and your book is full of well documented facts. Of course, so are Kitty's books, and the criticism she gets is vicious compared to what you get. Just thought the comparison might get a rise out of you. Best, Judy ________________________________ An Excellent Credit Score is 750. 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