I do think Smith is right, but jurisdiction-by-jurisdiction
RFRAs (i.e., the model we now have in many states and at the federal level
after City of Boerne) are sound, too, for reasons I discussed in my “Common-Law
Model” article. I don’t know what Robert George thinks.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Tuesday, February 17, 2015 10:56 AM
To: Law & Religion issues for Law Academics
Subject: RE: Jim Oleske's new review of book by Robert George
In response to Chip:
Perhaps I should let Eugene speak for himself, but I think he for the most part
thinks the Court got it right in Smith but also thinks a RFRA approach makes
sense. I suppose, though, that he (and others who take the same view) do not
agree with Justice Scalia that the judicial role assigned to judges by
Sherbert/Yoder and by RFRA is unworkable; they just don’t think the
Constitution provides for judges to take on such a role. I don’t know whether
George’s support for Smith was based on the unworkability argument or on an
understanding that the democratic process should govern the availability of
exceptions on a neutral basis. If it was the latter, then it does not seem that
his positions are inconsistent.
It seems to me that we should avoid attributing improper motivations to any of
the people involved here, unless there is very good reason to do so. Jim may be
seriously mistaken – that does not mean he engaged in a smear. Robbie may have
taken inconsistent positions, but that does not mean he did so insincerely to
benefit his preferred outcome (and his “friends”).
Mark
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Tuesday, February 17, 2015 9:52 AM
To: Law & Religion issues for Law Academics
Subject: Re: Jim Oleske's new review of book by Robert George
[Snip]]
No one who embraced Scalia's description of limits on the judicial role could
be a fan of RFRA, unless perhaps it turned out that RFRA helped his friends. I
understand that people can change their minds when their interests are
implicated, but a little humility (not accusations of "smear") seems in order.
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