To interpret the RFRAs to apply to speech is to stretch this legislative movement very far from its origins. RFRA was a response to the Court's decision regarding religious conduct in Smith, not a speech case. Traditionally, religious speech cases have been decided under the Free Speech Clause, not free exercise. It is interesting to watch those arguing for the religious entities argue that religious speech can be worthy of greater protection than other speech because it is religious but at the same time it is no different than other speech when it comes to government funding (Rosenberger), even though the prohibition on government funding is directed at religious speech. The big political picture here is interesting, because if religious entities overreach sufficiently, there will be a backlash against rfras generally. And since they are not constitutionally required, legislative repeal is possible. Of course, we are not there yet. While there is a burgeoning and passionate movement against RLUIPA's impact on residential neighborhoods, most citizens in states with rfras have little idea they exist, let alone impose on the public good. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University In a message dated 6/21/2009 1:54:50 PM Eastern Daylight Time, aebrownst...@ucdavis.edu writes:
Good point, Mark. I think statutes like the one reviewed in Texas Monthly that facially discriminate in favor of religious speech are going to be struck down. A more generic religious liberty statute, like a state RFRA, is more complicated. Let's suppose a city is told that it can not enforce its zoning ordinance against a Bible study group because of a state RFRA. Then a book club challenges the application of the zoning ordinance to its activities on the grounds that Bible study groups had been held to be exempt from the zoning ordinance under RFRA. One could argue that a court could resolve this dispute by refusing to allow the city to enforce the zoning ordinance against the book club without giving the RFRA statute a narrow construction. But is that the best result? Now other cities in the state have to figure out how the state RFRA applies to their content neutral laws that regulate speech and the extent to which exempting religious speech from those laws under RFRA requires them to grant additional exemptions to other speakers. It might make more sense to construe the RFRA law not to require exemptions for religious speech. As an aside, I might add that when California was considering a state RFRA law, proponents of the law conceded that it would not apply to content neutral speech regulations in part because such applications would be unconstitutional.The contrary argument, that RFRA would require the state and cities to privilege religious speech, was a very hard sell politically. Alan Brownstein **************A Good Credit Score is 700 or Above. See yours in just 2 easy steps! (http://pr.atwola.com/promoclk/100126575x1221323000x1201367220/aol?redir=http://www.freecreditreport.com/pm/default.aspx?sc=668072&hmpgID=62&bcd= JunestepsfooterNO62)
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