No, that's not my position, though I would not reject it out of hand. The question is what is the appropriate remedy when the government creates an exception to a neutral law, where the exception appears to apply only to religious speech. One remedy would be to strike down the exception; another would be to strike down the limitation of the exception only to religious speech. If a party seeking to take advantage of the exception for purposes of nonreligious speech seeks to do so on the ground that the party is entitled to the same speech rights as religious speakers, I don't see why the obvious answer would be to strike down the entire exception, rather than to require that it be extended, which would give the plaintiff affirmative relief. If the remedy is to extend it, then the state (or local government) then would have the choice of repealing the exception or of allowing it to continue to operate in favor of both religious and nonreligious speech. It does seem to me that some kinds of religious exercise that could be characterized as speech ought to be entitled to special protection under the Free Exercise Clause, but that is ruled out by Smith (unless we are willing to give some content to the hybrid rights exception posited in Smith). Mark Scarberry Pepperdine
________________________________
From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene
Sent: Sun 6/21/2009 11:17 AM
To: Law & Religion issues for Law Academics
Subject: RE: "A Bible study group and a book club are not treated the same"
Mark: So under Rosenberger, the Free Speech Clause bars the
government from discriminating against religious speech - but the Free Speech
Clause does not bar the government from discriminating in favor of religious
speech? That strikes me as a somewhat counterintuitive position; I supposed it
could be defended, but I just wanted to make sure this was indeed your position.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
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
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