I conceded at the outset that reasonable people could differ on "Smith is right, and RFRA is still good policy." I just don't think that case can be made on grounds of political accountability that RFRA invites. I apologize for putting Mark in the wrong group.
Bill Marshall did indeed think Smith was right for reasons never expressed in the opinion (primarily, that pre-Smith doctrine improperly elevated religion over its secular counterparts.) But Bill most certainly is no fan of RFRA. He has just posted "Bad Statutes Make Bad Law: Hobby Lobby v. Burwell," forthcoming in Supreme Court Review, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2562949. I strongly encourage others on the list to read it. On Wed, Feb 18, 2015 at 7:15 PM, Scarberry, Mark < mark.scarbe...@pepperdine.edu> wrote: > 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 > <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 > > _______________________________________________ > 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" ( 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.
