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
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--
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
_______________________________________________
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