Mark did not say that the remedy must always be to extend the exemption; only
that the court has a choice. Justice Harlan's opinion in Welsh v. United
States talks at length about this choice, and the factors that should inform
the court's judgment. He disagreed with the Court's interpretation of the
statutory draft exemption, but concurred in the judgment on the ground that the
remedy for discrimination should be to extend the exemption to secular
conscientious objectors as well.
Quoting "Volokh, Eugene" <vol...@law.ucla.edu>:
> 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
>
> From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry,
> Mark
> Sent: Sunday, June 21, 2009 5:00 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: "A Bible study group and a book club are not treated the same"
>
> 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[1]
>
> 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[2]
>
> 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
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>
> _______________________________________________
> 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[3]
>
> 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[4]
>
> 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.
>
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
Links:
------
[1] http://www.supreme.courts.state.tx.us/historical/2009/jun/060074.htm
[2] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
[3] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
[4] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
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