More later when I have more time (promise or threat?), but I did not argue that any particular state RFRA required any particular level of scrutiny for any particular religious speech. My only point was that when a plaintiff challenges application of a speech-restrictive statute against him or her because someone else gets an exemption from the statute for religious speech, and if the discrimination is constitutionally impermissible, then the court has two remedial possibilities: (1) hold that the exemption is not really available to the other person (because such discrimination in favor of religious speech violates the Free Speech Clause) and thus hold that the statute validly restricts the plaintiff's speech because there is in fact no impermissible discrimination, or (2) hold that the state's granting of an exemption for the religious speech requires (under the Free Speech Clause) that a similar exemption be available for the plaintiff so as to provide equal treatment. One approach abrogates the state exemption; the other expands it. Neither seems to me obviously more in line with what the state legislature would want if it had considered the case, and thus it is hard to say one is more faithful to state law. And none of this depends on whether someone actually has challenged a supposedly neutral speech restriction under a state RFRA, does it? Isn't the mere availability of such a challenge under a state RFRA the predicate for the claim of protection for the nonreligious speech? Just to give this some concreteness, suppose a religious person (Rita) claims that her faith requires her to pray audibly with three coreligionists in a large open public place near her home all night. The only eligible place is the local park, but a local ordinance provides that no one shall be in the public parks between 1am and 5am. The park supervisor allows her to do so, relying on a state RFRA. Four members of a poetry society hear about this and ask for permission to recite poetry as a group all night in the park. The park supervisor refuses, and the poetry group sues. Must the state court enjoin the park supervisor from allowing Rita to pray all night in the park? If the court does not do so, must it enjoin the park supervisor to permit the four poetry society members to recite poetry all night in the park? Could the court determine that for Free Speech equality purposes the parties are not similarly situated, because the poetry society members have adequate alternative means of expresssion? Or would that be a sub-rosa application of the Free Exercise Clause contrary to the interpretation given it in Smith? Suppose there is no Rita. If the poetry society members ask for permission to recite poetry all night in the park, and the park supervisor admits he would give them permission per the state RFRA if their religion required them to recite poetry all night in the park, can they obtain relief because of the stated posture of the supervisor that would discriminate in favor of nonreligious speech? Or is my example flawed because the ordinance is not directed at speech but merely at presence in a park, such that allowing persons to be present in a park when they have religious reasons for being there but not allowing them to be present when they have nonreligious reasons for being there is not a matter of speech discrimination? But parks are public forums... Will most statutes challenged under RFRA be these kinds of statutes that are not on their face directed against speech? Sorry for having more questions than answers. Mark S. Scarberry Pepperdine University School of Law
________________________________ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, June 22, 2009 6:23 AM To: religionlaw@lists.ucla.edu Subject: Re: "A Bible study group and a book club are not treated the same" Eugene has to be correct here. In fact, the Court does not apply strict scrutiny to every situation involving religious speech. It always depends on the context and the government purpose. The notion that political speech and religious speech are subject to strict scrutiny in every circumstance is another example of oversimplifying the doctrine. It is reminiscent of the claims that strict scrutiny always applied to religious conduct after Smith was decided. The strict scrutiny doctrine does not describe the cases accurately. Marci In a message dated 6/21/2009 10:57:17 P.M. Eastern Daylight Time, vol...@law.ucla.edu writes: Mark: Stop me if I'm wrong, but if RFRA requires that (1) restrictions on religiously motivated speech must be judged under strict scrutiny, and (2) any objection that secularly and religiously motivated speakers must be treated the same way must be resolved by extending the exception to both, then every speech restriction - including content-neutral ones, reasonable viewpoint-neutral ones in nonpublic fora, Pickering-consistent ones imposed by the government as employer, and so on - would have to be judged under strict scrutiny, at least so long as a single religious objector is found to it. Speech restrictions would thus be divided into two classes: Those that are judged under lower standards of review (when that's acceptable under Free Speech Clause doctrine) because they haven't yet been challenged by a religious objector, and those that are now judged under strict scrutiny as to all speakers because they have at least once been challenged by a religious objector. Can that be right (even if the government can cure this by excluding the restriction on a case-by-case basis from the scope of the RFRA)? Eugene ________________________________ An Excellent Credit Score is 750. See Yours in Just 2 Easy Steps! <http://pr.atwola.com/promoclk/100126575x1221823273x1201398689/aol?redir =http://www.freecreditreport.com/pm/default.aspx?sc=668072%26hmpgID=62%2 6bcd=JuneExcfooterNO62>
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