For the record, the compelling interest test in pre-Smith free exercise cases was not so toothless as the conventional wisdom would have it. The Court had found a compelling interest in only three contexts in free-exercise cases: Gillette (raising an army), Lee and Hernandez (collecting taxes), and Bob Jones (racial equality in education). In each, reasons of self-interest or widespread prejudice threatened unmanageable numbers of claims, putting the broader interest at stake and not just a few exceptions at the margins of that interest.
Goldman and O’Lone refused to apply the compelling interest test to military or prisons. Lyng and Roy found no burden on religious exercise. Whatever one thinks of these cases (I disagree with Goldman and O’Lone but find Lyng and Roy hard to argue with), they do not water down the compelling interest test. They never reach that issue. And then RFRA’s text says that the statute’s purpose is to restore the compelling interest test as set forth in Sherbert and Yoder, and no one claims it was watered down there. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Sunday, October 19, 2014 5:21 PM To: Law & Religion issues for Law Academics Subject: Re: "I would not have enacted this statute" - Justice Scalia on RLUIPA I appreciate the comments of others to the effect of "I would not have enacted . . " = "stupid" or "silly." Note that the Supreme Court must take state law as the Court finds it, silly, stupid, or otherwise. But the Court has authority to interpret federal law. So perhaps we need a new maxim of statutory construction -- should it be "stupid laws should be narrowly construed," to minimize their harm; i.e., compelling means something much less than it seems, as in pre-Smith law? Or should it be "stupid laws should be broadly construed," to show Congress just how stupid its law really is;" i.e., compelling means what some shallow law students might think it means, even if that overly empowers individuals against the state? -- 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 <tel:%28202%29994-7053> Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" ( Wm. B. Eerdmans Pub. Co., 2014)) 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 <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 <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 <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 <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. -- 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" ( Wm. B. Eerdmans Pub. Co., 2014)) 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.