Chris --
I don't think you should read as much as you do into "sensible balances" in O
Centro, since it is after all a quote from the statute. In fact, the way I read
it, the Court quotes the statute to affirm what Congress did, namely define the
full-throated compelling interest test as a method of sensible balancing, i.e.
the test works. Recall that the DEA's approach in O Centro was to complain that
applying RFRA to the Controlled Substances Act would upset their supposedly
carefully calibrated closed and comprehensive system of drug regulation, make
sure the Court was aware that "mind-altering" hallucinogenic tea is really
weird and scary and will hurt babies in utero, and hope that the Court would
give them a free pass for security/law enforcement reasons. The Court responds
to this approach by defining the compelling interest test in its full vigor as
a way of sensible balancing while (gently) mocking the DEA's complaints as "the
classic rejoinder of bureaucrats throughout history." To my mind that is a
pretty strong rejection of the idea that there is something wrong with applying
the compelling interest test with full force to religious exercise claims. The
Court was expressly rejecting DEA's argument that the compelling interest test
should be kept out of the drug regulation system. So I don't see how you get
from there to the idea that the Court was saying that the compelling interest
test should be softer with respect to a religious exercise claim than it is
elsewhere. How else can you explain the Court's reliance on Ashcroft v. ACLU?
On the broader notion that we need a "soft" or "weak" version of the compelling
interest test for religious exercise claims: Why? The fact that lower federal
courts or state courts have been reluctant to provide certain kinds of remedies
(partly because they are exercising a form of docket control) doesn't seem like
a strong argument for shaving down federal civil rights laws like RLUIPA. That
is especially so since the compelling interest test is naturally more
government-friendly when it comes to religious conduct cases: Religious conduct
claims will rightfully trigger strict scrutiny much more often than speech
claims because the effect on third parties in speech cases--hearing something
they disagree with--is much less than conduct that affects third parties
directly. Put another way, there is no speech analogue to the CGI invoked by
the government in a child-sacrifice-to-Moloch free exercise case; even stopping
someone from shouting fire in crowded theater is not as strong a CGI. So courts
will naturally find more CGIs to defeat religious conduct claims than they will
find to defeat speech claims. (This is a point that Doug Laycock has made
before.) That means that the compelling interest test is working, not that
there is a problem with it.
Moreover, there is a real problem with the underlying analytical approach here
that unjustly puts the burden on the religious entity to justify the exception.
All of the arguments I have seen so far seem to take for granted that there's
some problem with making exceptions to the rules our government agencies come
up with. Do we really think the DEA is that smart or well-meaning? Given that
everyone concedes that a government made up of human beings doesn't and can't
possibly get everything right, why is the baseline presumption when it comes to
religious exercise claims that government got the rules right in the first
place? The presumption should instead be that government actually goofs up with
great frequency and we should be on the lookout for mistakes. That means that
government rules should be viewed with a jaundiced eye, and when it comes to
core constitutional rights like religious liberty or speech we need strong
safeguards to account for the certainty of government mistakes/overreaching.
So if anything I'd argue that the main problem with both federal RFRA and state
RFRAs right now is if anything lower court incomprehension, not a need for
squishier standards that can easily be overcome by inevitable government
invocations of "security."
Eric
_______________________________________
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
On Behalf Of Christopher Lund [l...@wayne.edu]
Sent: Sunday, June 17, 2012 4:36 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Strict scrutiny, from Sherbert/Yoder to RFRA
I wanted to send out a thought relating to earlier posts by Mark Graber and
Eugene Volokh. They suggest an intermediate standard of review, somewhere
between strict scrutiny and Smith. I think they are right on the key point.
The usual “strict scrutiny” standard – i.e., strict in theory, fatal in fact –
won’t work for free exercise. It’s too harsh a standard. I think defenders
of regulatory exceptions generally believe that. But we also all know that, in
the Shebert/Yoder days, the test wasn’t applied like that. “Strict in theory,
feeble in fact,” as people say.
Justice Scalia says in Smith that this is a problem—that it won’t work to have
a “compelling interest” test in Free Exercise that is less stringent that the
“compelling interest” test in Free Speech. It will either (1) water down the
test in the Free Speech setting, or (2) improperly heighten the test in the
Free Exercise setting. Judges will be confused between the two domains, and
one domain will screw the other up. Eugene says something similar below.
But I don’t know quite why that is; I haven’t seen any evidence of confusion.
It seems to me that we could quite sensibly have a compelling-interest test in
Free Exercise that is lighter than the compelling-interest test in other areas.
The compelling-interest test applies differently in different domains:
“Context matters in applying the compelling interest test.” Gonzales v. O
Centro, 546 U.S. 418, 431 (2006). Grutter and Lawrence were decided the same
term. Grutter upheld an affirmative action program under a deferential version
of strict scrutiny; Lawrence struck down a sodomy law under an aggressive
version of rational basis. That’s confusing, but no judge tasked with actually
applying Grutter will be confused by Lawrence (or vice versa).
And what could be more confusing than the current situation? Right now, we
have two different compelling-interest tests in the area of Free Exercise
alone. Gonzales v. UDV applied RFRA’s compelling-interest test and said that
it required “sensible balances” between religious liberty and governmental
interests. (Gonzales repeats “sensible balances” three times.) That language
has been used in state RFRA cases as well. That’s light years away from
Lukumi’s compelling-interest test, which really is
strict-in-theory-and-fatal-in-fact. But having two different
compelling-interest tests seems to have worked fine for Free Exercise.
Students get the difference between them. We get it. Courts get it. I mean,
occasionally a plaintiff will cite the Lukumi line of cases in support of his
RFRA or state RFRA claim, thereby making it seem as if state RFRAs create that
sort of ruthless presumption of invalidity. But I don’t think courts are
fooled. (One great example of a court not being fooled is State v. Hardesty,
214 P.3d 1004, 1008-09 (Ariz. 2009)). No confusion, as far as I can tell. So
what then is wrong with RFRA’s compelling-interest test, if we agree that
“compelling interest” can’t mean here what it might mean in other places?
Best,
Chris
From: Volokh, Eugene
Sent: Friday, June 15, 2012 10:44 AM
To: Law & Religion issues for Law Academics
Subject: Strict scrutiny, from Sherbert/Yoder to RFRA
I disagree on very much with Marci, and I’m not sure that the
Sherbert/Yoder test would have been inapplicable to the things that NARAL and
CHILD fears.
But Marci’s more general point strikes me as quite correct: At least if read
literally, RFRA enacts an across-the-board strict scrutiny test, which the
Court in the Sherbert/Yoder era never did. For instance, when the government
was acting as prison administrator or as commander of military personnel, the
religious exemption test--like the Free Speech Clause test--was close to the
rational basis framework. Lower courts adopted a similarly deferential test for
probation conditions that incidentally interfered with religious practices.
When the government was acting as employer, some lower courts likewise adopted
fairly (but not entirely) deferential tests borrowed from the Pickering test
applied in government employee free speech cases. There was no agreed-on test
for the government acting as educator in kindergarten through high school, but
courts at least had the option of concluding that the free exercise test--like
the free speech test--should be relatively deferential in these cases, too.
When the government was acting as sovereign, the test was usually strict
scrutiny, but not always. For claimants requesting exemptions from generally
applicable speech restrictions, the free exercise test was the same as the free
speech test, which might differ from strict scrutiny. Content-neutral
restrictions on the time, place, or manner of speech, for instance, are only
subject to a form of intermediate scrutiny under the Free Speech Clause, and
Heffron v. ISKCON held that this same quasi-intermediate scrutiny was
applicable to requests for religious exemptions from such restrictions.
Similarly, some lower court cases suggested that zoning restrictions were
subject to a lower standard of scrutiny.
Now perhaps the same results could be reached by applying strict scrutiny with
an eye towards the special circumstances present in those cases – but that,
even more than the Court’s “feeble in fact” version of strict scrutiny applied
in cases such as Lee, Bob Jones, and the like, would in practice be a way of
avoiding strict scrutiny rather than a way of honestly applying it.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Friday, June 15, 2012 12:09 AM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Religious exemptions in ND
The Sherbert/Yoder test was never treated by the
Supreme Court as a test available across the
board. So NARAL's concerns and CHILD 's
Issues would not have been controlled by it
The concern is not over enforcement but rather enforcement
Giving religious groups more power to endanger children is
not a good idea.
Marci
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