I agree with Mark that Smith allows the political process to deal with religious exemptions -- as long as those exemptions do not violate any other constitutional guarantee. It may well be that the state has a choice as to how it can respond to a claim that it discriminates in favor of religious speech. Instead of standing by the discriminatory exemption -- which would require a court to invalidate it -- it could generalize the exemption to apply to all expressive meetings. But if the state refuses to extend the exemption, doesn't that require a Court to subject the exemption to strict scrutiny and, presumably, to strike it down?
Alan Brownstein ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Saturday, June 20, 2009 6:25 PM To: Law & Religion issues for Law Academics Subject: RE: "A Bible study group and a book club are not treated the same" If Smith is going to be used to justify a constitutional prohibition on religious exemptions, then it is even worse than I thought. But the point of Smith, as I understand it, is precisely to allow the political process to deal with requests for political exemptions. To the extent that land use laws applied in a supposedly neutral way would prevent religious groups from meeting, it seems that the granting of an exemption by the local government would be permitted by Smith. Whether the granting of such an exemption then would require that similar non-religious group meetings would need to be permitted is an interesting question that could affect the outcome of the political process with respect to allowing exemptions for religious meetings but should not invalidate such exemptions. At least that's my initial take. Mark Scarberry Pepperdine _____ From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan Sent: Sat 6/20/2009 5:52 PM To: Law & Religion issues for Law Academics Subject: RE: "A Bible study group and a book club are not treated the same" If we had a constitutional regime that confers special protections for non-expressive religious exercise against neutral laws of general applicability, the issue of how to treat expressive religious exercise would require some difficult line drawing and analysis. But since Smith controls the meaning of the free exercise clause, there is no special federal constitutional protection for religious exercise -- whether it is expressive or not. Under this regime a statute that confers special protection for expressive religious exercise is going to confront serious and unavoidable establishment clause and free speech clause issues, isn't it? Alan Brownstein ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Bezanson, Randall P [randy-bezan...@uiowa.edu] Sent: Friday, June 19, 2009 9:05 AM To: 'Law & Religion issues for Law Academics' Subject: RE: "A Bible study group and a book club are not treated the same" Let's see ... speech is fully protected, but religious speech is even more fully protected, indeed advantaged.Can that be right? Yes, if the Free Exercise Clause confers special protections for religious speech exercise -- a not implausible theory. Yet I have always thought that the non-establishment clause could justify greater or additional limitations on religious speech. Could both be true? I don't see any reason why not since the two religious clauses are often, though not always, at war with one another because they serve two distinct purposes. Randy Bezanson -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, June 19, 2009 10:05 AM To: Law & Religion issues for Law Academics Subject: "A Bible study group and a book club are not treated the same" I haven't read the whole opinion yet, but in my skim I was struck by this line: "The trial court appears to have been troubled that an operation which can be and often is conducted for purely secular purposes could be entitled to increased protection from government regulation if conducted for religious reasons. But TRFRA guarantees such protection. Just as a Bible study group and a book club are not treated the same, neither are a halfway house operated for religious purposes and one that is not. Under Smith, the Free Exercise Clause does not require strict scrutiny for religious activity affected by neutral laws of general application,66 but TRFRA imposes the requirement by statute." Is it clear that it's constitutional, given the Free Speech Clause and the Establishment Clause, and the position of 6 of the votes in Texas Monthly v. Bullock, for the law to treat Bible study groups better than book clubs? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Friday, June 19, 2009 7:58 AM To: religionlaw@lists.ucla.edu Subject: Texas RFRA The Supreme Court of Texas has unanimously given the Texas RFRA its intended meaning to provide real protection for exercises of religion. Barr v. City of Sinton, Link to opinion below. The case involves a religious halfway house in a small town in South Texas. The city made no serious effort to prove a compelling interest in closing the halfway house; its main argument seemed to be that there was no burden because the halfway house could leave town, and that that Texas RFRA should not apply to zoning anyway. Most of the opposition to Texas RFRA was from neighborhood associations worried about land use. The lead sponsor in the House told me that if people got the idea that this meant that black churches could locate in white neighborhoods, the bill would be dead. The compromise was to provide that cities would have no less land use authority than they had had under federal law on March 17, 1990 (the day before Smith.) The land use folks claimed that Sherbert and Yoder had never applied to them; the bill's supporters claimed that Sherbert and Yoder had been a generally applicable test that applied to all regulation, including land use regulation. The state supreme court just resolved that argument in favor of the bill's supporters. http://www.supreme.courts.state.tx.us/historical/2009/jun/060074.htm Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 _______________________________________________ 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. _______________________________________________ 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.
