It is worth recalling that federal RFRA itself was anything but divisive. Au contraire. It passed with overwhelming support from both parties, and wide support among civil rights and civil liberties groups (with Hobby Lobby under advisement, some of these groups are now running from RFRA like it was the plague).
The problem now is not divisiveness, per se. Like any controversial Supreme Court decision, some will hate it and others will love it. Inevitably, these folks will be divided by their disagreement. The problem is legitimacy. Free exercise standards, pre-Smith, were incredibly plastic -- sometimes you got Yoder, Thomas, or Frazee, and sometimes you got Goldman, O'Lone, Lyng, and Smith itself (O'Connor's concurrence). RFRA codifies the regime of Sherbert-Yoder, but that has proven in the lower courts to be equally plastic at every turn. What is a substantial burden, a compelling interest, a less restrictive means? Does RFRA restore U.S. v Lee, including its dictum about commercial actors accepting relevant regulatory regimes? Does it restore Braunfeld v. Brown? (See the Kagan -- Clement colloquy at oral argument about what RFRA "restores.") The fussing over state RFRA's recently has reflected the same massive uncertainty over what they will be held to protect -- wedding vendor refusal to serve same sex couples? Employer refusal to provide spousal benefits to same sex spouses of employees? Let's just leave it to the courts (in these cases, state courts) is not reassuring to anyone. What I fear is that, whatever the outcome in Hobby Lobby, the losers will never believe that they lost based on any legal principle that will be applied consistently over time. Accordingly, they will believe that they lost only on culture war politics. Religious exemptions present many deep problems, including judicial appraisal of the religious significance of particular acts, but this problem of inconsistency (and therefore illegitimacy) over time seems particularly severe. On Mon, Jun 9, 2014 at 11:10 AM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > I appreciate Alan's attempt to cabin the "divisiveness" > concept, but I wonder whether it works. Nothing is beyond the scope of > political decision-making -- there is always the possibility of > constitutional amendment, and, more importantly, so long as various > decisions involve the contested interpretation of constitutional language, > there is the possibility of using political processes to select Justices > who will take a different view of the matter. Indeed, my sense is that > some of the most prominent political divisions along religious lines have > come with regard to decisions that aimed to take things off the table, but > have failed to do so. Roe v. Wade is the classic example, though in some > measure the various government speech decisions, from the school prayer > case onwards, have had that effect as well. > > > > Now it may well be that other decisions have indeed settled matters in > considerable measure, and thus diminished religious groups’ political > mobilization as religious groups. But my guess is that it’s often not easy > to predict which creates more mobilization of religious groups as religious > groups: a particular executive or legislative policy decision, or a Supreme > Court decision reversing that policy decision. > > > > Eugene > > > > > -----Original Message----- > > > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > > > boun...@lists.ucla.edu] On Behalf Of Alan Brownstein > > > Sent: Sunday, June 08, 2014 7:37 PM > > > To: Law & Religion issues for Law Academics > > > Subject: RE: "Divisiveness" > > > > > > If divisive means that people will be upset by a substantive decision > than Eugene > > > is clearly correct. I have always thought the issue was whether a > decision was > > > one that provoked political divisions along religious lines in the sense > that if > > > government could promote religion (or interfere with religion) religious > groups > > > would have an additional incentive to organize and mobilize as religious > groups > > > in order to make sure that it was their faith that the government > promoted and > > > that it was not their faith that was subject to government interference. > Placing a > > > church-state issue beyond the scope of political decision-making by > subjecting it > > > to constitutional constraints avoided (or at least mitigated) these > kinds of > > > political/religious divisions. > > > > > > There is probably a better term for this concern than divisiveness. > > > > > > Alan Brownstein > > _______________________________________________ > 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. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ 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.
