Note JPS's examples -- a museum and an art gallery. His objection might be styled as an EC concern, but I think what's doing most of the work is actually the speech and assembly clauses of the First Amendment. He's suggesting what is implied in, e.g., Heffron and the opinions in Texas Monthly -- namely, that otherwise permissible religious accommodations might be constitutionally problematic to the extent they result in content- or speaker-based preferences with respect to speech, assembly, and petition. Bill Marshall and Chip Lupu, among others, have long argued that many applications of RFRA/RLUIPA might raise such problems under the other clauses of the First Amendment. Of course, avoiding such serious constitutional questions of impermissible discrimination might also be a compelling interest that would justify the government rejecting the accommodation in the first place, under the terms of the statute, thereby avoiding the need to determine whether RFRA or RLUPA violates the First Amendment.
Because ingesting hoasca tea is generally not activity that is otherwise protected by the First Amendment, the same concern did not arise in O Centro. On Mon, Apr 11, 2011 at 8:08 AM, Andrew Koppelman < akoppel...@law.northwestern.edu> wrote: > In Boerne v. Flores, Justice Stevens declared that the Religious Freedom > Restoration Act was unconstitutional as applied to the states because it > violated the establishment clause. "If the historic landmark on the hill > in > Boerne happened to be a museum or an art gallery owned by an atheist, it > would not be eligible for an exemption from the city ordinances that forbid > an enlargement of the structure. Because the landmark is owned by the > Catholic Church, it is claimed that RFRA gives its owner a federal > statutory > entitlement to an exemption from a generally applicable, neutral civil law. > Whether the Church would actually prevail under the statute or not, the > statute has provided the Church with a legal weapon that no atheist or > agnostic can obtain. This governmental preference for religion, as opposed > to irreligion, is forbidden by the First Amendment." Yet in Gonzales v. O > Centro, he joined a unanimous Court in applying RFRA to limit the reach of > federal law, without a whisper about the establishment clause. > > Any speculations about how these decisions can be reconciled? > > > _______________________________________________ > 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. >
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