Jon Mallamud writes:
> 4. Hobby Lobby represents to me an important test in how politically motivated
> the Court is becoming. In Boerne the Court held that in enforcing the
> fourteenth
> amendment, the Congress had to stick to the Supreme Court's interpretation of
> the constitution. In Employment Division v. Smith, Scalia interpreted the
> constitution for the Court and Congress tried to impose its own
> interpretation.
> If Scalia decides that a statute purporting to deal with all federal law just
> as the
> constitution does, and thus uses the rule of decision in RFRA to decide a
> religious
> exemption case, I would be concerned. Of course I am sure one could write a
> persuasive argument that Congress has full authority over statutes it enacts
> and
> Scalia could defer to the statute.
I'm not sure why we should be "concerned" "[i]f Scalia decides
that a statute purporting to deal with all federal law just as the constitution
does, and thus uses the rule of decision in RFRA to decide a religious
exemption case." Congress has the power to carve out exemptions from federal
laws (even if lacks such power to carve out exemptions from state laws, see
Boerne). Smith simply holds that the Free Exercise Clause doesn't provide such
exemptions - it doesn't preclude statutory exemptions, no?
By the way, if we should be concerned by Scalia's possible
pro-Hobby-Lobby vote, I take it we should be equally concerned by Stevens'
votes in Smith, Boerne, and O Centro, as well as by Ginsburg's votes in Boerne
and O Centro (since her vote in Boerne suggests that she would have voted with
the majority in Smith), no?
Eugene
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