He certainly could have said more about Smith, but I think they found it
easy. The relevance of Smith was extensively briefed by all sides. And at
oral argument, Scalia (the author of Smith) said emphatically that "This
case has nothing to do with Smith."
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
-----Original Message-----
From: Eric J Segall [mailto:eseg...@gsu.edu]
Sent: Wednesday, January 11, 2012 12:51 PM
To: Douglas Laycock; 'Con Law Prof list'
Cc: religionlaw@lists.ucla.edu
Subject: RE: Hosanna-Tabor
Well, I am a bit reluctant to get into this with Doug and Gene but just a
couple of thoughts. Smith, and the Court's recent Establishment Clause
jurisprudence, especially the parochial school aid cases, seem to suggest
that neutrality and general applicability are the keys to the Religion
Clauses (certainly Scalia and Thomas think so). I guess that's not true for
"internal church governance" but not sure why and, being one who believes
strongly in Thayer type deference, I am not sure this is not one of those
cases where the result makes sense but is not constitutionally required.
I hope Doug and Gene agree that Smith was dismissed a bit too casually in
Roberts' opinion, if nothing else.
Best,
Eric
________________________________________
From: Douglas Laycock [dlayc...@virginia.edu]
Sent: Wednesday, January 11, 2012 11:42 AM
To: Eric J Segall; 'Con Law Prof list'
Cc: religionlaw@lists.ucla.edu
Subject: Hosanna-Tabor
Is anyone convinced by the Court's distinction of Smith? Well actually, all
nine Justices were convinced, all twelve federal circuits have been
convinced, and twelve state supreme courts have been convinced, with none
going the other way. "Physical acts" is not the best label for the scope of
Smith, but the basic distinction between internal church governance and
other matters goes all the way back to Locke. It is embedded in a line of
Supreme Court cases that long pre-date Sherbert and Yoder and that
peacefully co-existed with Reynolds v. United States (a case refusing
religious exemptions).
Douglas Laycock
Robert E. Scott Distinguished Professor of Law University of Virginia Law
School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
-----Original Message-----
From: conlawprof-boun...@lists.ucla.edu
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Wednesday, January 11, 2012 10:40 AM
To: Con Law Prof list
Subject: RE: Hosanna-Tabor II
This is the sum total, after a quick read, of what the Court said about
Smith:
"But a church's selection of its ministers is unlike an individual's
ingestion of peyote. Smith involved government regulation of only outward
physical acts. The present case, in contrast, concerns government
interference with an internal church decision that affects the faith and
mission of the church itself. See id., at 877 (distinguishing the
government's regulation of"physical acts" from its "lend[ing] its power to
one or the other side in controversies over religious authority or dogma").
The contention that Smith forecloses recognition of a ministerial exception
rooted in the Religion Clauses has no merit."
"Physical acts," v. an "internal church decision."
Is anyone convinced by this?
________________________________________
From: Eric J Segall
Sent: Wednesday, January 11, 2012 10:34 AM
To: Con Law Prof list
Subject: Hosanna-Tabor
So Title VII, a generally applicable law that was not passed to hurt or
affect religion (and in fact protects religion), does not apply to religious
groups. I am not an expert in the Free Exercise Area, but how can Scalia
join this opinion? Am I missing something?
Thanks,
Eric
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