Chip, I’m with Doug on this: I also think Smith was wrongly decided, so you have put me in the wrong group; even on your view of the matter, I’m not a clinger.
And I *haven’t* seconded any argument about political accountability. In fact, I very much worry that there will be too little room for religious freedom if the matter is left to the political process. Recent developments confirm my fears. I want Smith to be overruled. Meanwhile I’m willing to support RFRAs as a second best approach (and perhaps as a better approach than what might be put in place of Smith, were it to be overruled). What I *have done* is to point out that there are people who are convinced of two perfectly consistent propositions: (1) Smith was right as a matter of whether the Constitution requires religious exemptions, and (2) a RFRA approach is good policy. They may have various reasons for taking both of those positions. They need not agree with the reasons Justice Scalia gave in his Smith opinion. I need not agree with any of their reasons to recognize that they put them forward reasonably and in good faith. Even if I thought that Smith got it right as a matter of constitutional law – perhaps, to use a counterfactual, because I somehow was persuaded that it was right on originalist grounds – I still would support the RFRA approach. I’m not persuaded that the concerns expressed by Justice Scalia about (as you term them) “normative and institutional deficiencies” outweigh the need for real and substantial protection of religious exercise against neutral, generally applicable laws. It’s not that Justice Scalia’s concerns “go away;” I never found them persuasive in the first place. Best, Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock Sent: Wednesday, February 18, 2015 3:28 PM To: 'Law & Religion issues for Law Academics' Subject: RE: Jim Oleske's new review of book by Robert George I think Smith was wrong. But those who think it right think so for a variety of reasons. They may think the original public meaning simply didn’t include exemptions, and think that unfortunate. They may not at all buy Scalia’s argument about how terrible it is for judges to make judgments. Recall Bill Marshall’s argument that the result was right but the opinion was a travesty. Even if they rely on legislative oversight, they may think that in a sufficiently clear or unpopular case, legislative oversight would come. State legislatures have enacted plenty of RFRA exceptions, some of them reasonably sensible and some of them deeply ill-advised. Most of these were part of the initial enactment, but at least Illinois and Florida have enacted RFRA exceptions in response to particular litigation. Supporters of both Smith and RFRA may also think that the present legislative polarization will not last forever, and sooner or later, it will be possible for Congress to legislate again. 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> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Wednesday, February 18, 2015 6:12 PM To: Law & Religion issues for Law Academics Subject: Re: Jim Oleske's new review of book by Robert George Dear Rick: Yes, I think you are just echoing Mark and Eugene when you emphasize the distinction between pre-Smith free exercise adjudication and RFRA adjudication. Consider what Scalia says in Smith (pp. 885-890) about the normative and institutional deficiencies of free exercise adjudication -- among other concerns, the deep undesirability of "a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs" (at 890). What makes this and other concerns he expresses go away when the identical standards are being applied under RFRA? The argument to the contrary, as I understand it, is not about judicial competence to apply those standards. How can judges magically become more trustworthy or reliable when the identical power is being exercised under a statute? Eugene's argument (which you and Mark have seconded) is not about manageability or substantive soundness of those standards. Instead, it is all about political accountability - that somehow RFRA adjudication is different because of the possibility of legislative revision and control. As you probably know, I have recently argued that this line of thinking is an academic fancy, with no real world confirmation. See pp. 73-74 of "Hobby Lobby and the Dubious Enterprise of Religious Exemptions, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2466571. Reasonable people can differ on this, of course, but public choice theory confirms the lived experience -- at least before the recent conflict about marriage equality and vendor discrimination, legislators would routinely vote for "religious freedom" in the abstract, and leave to the judiciary all the particular choices of how to apply RFRA's to each case. Legislators would get all the credit and none of the blame for any bad choices. There has been no after the fact accountability for legislative approval of a RFRA. So I get why Mike Paulsen, Doug Laycock, and others are big fans of RFRA -- they think Smith was wrong, and that RFRA rightly restores some version of the pre-Smith regime. But I don't get why you, Mark, Eugene and others cling to this "Smith was right, but RFRA is good" trope. It rests on sand. I will confess original ambivalence about Smith (i have written on both sides of that -- critical of Smith in the early years, supportive more recently). But I have been convinced from the beginning that RFRA was a mistake, and I am only more convinced by 20 years of experience that the regime of RFRA, as administered by judges and never supervised by legislatures, is unprincipled. I hope this answers your question. Chip
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