I have always thought, as Marty suggests, that free speech concerns carried much of the water in Texas Monthly and help to explain Stevens' brief opinion in Boerne. But I'm not sure that's the whole story. I believe Justice Stevens envisioned a fairly active role for the Court in reviewing discretionary religious accommodations. (Indeed, I'm writing an article about that as we speak.) In Cutter v. Wilkinson, in rejecting an Establishment Clause challenge, the Court included a list of caveats as to how RLUIPA would have to be applied to withstand an as-applied challenge. Stevens joined that opinion, perhaps because it made clear that some applications of the statute would extend too far, or raise concerns about religious equality, or otherwise violate Establishment Clause requirements.
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, April 11, 2011 5:29 AM To: Law & Religion issues for Law Academics Subject: Re: A John Paul Stevens puzzle 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<mailto: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<mailto: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.
_______________________________________________ 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.