I'm not sure I agree that it is a rule with no exceptions. But let's assume you are right about that. Let's also assume that a state RFRA, and thus strict scrutiny, applies. The asserted compelling interest is having a police force that appears professional and approachable, and does not appear disheveled, and recognizing that an arbitrary line must be drawn. How does this fare under strict scrutiny? Could any rule limiting beard length pass strict scrutiny?
And what about my initial question. Assume there is a RFRA in place in the state. Can an arbitrary limit on the size of the business comport with strict scrutiny? On Wed, Feb 25, 2015 at 10:47 AM, Doug Laycock <dlayc...@virginia.edu> wrote: > That’s not even a rule with exceptions. As you describe it, it’s a > generally applicable rule that no beard can be longer than one inch. If > it’s enforced even handedly against religious and secular beards, i.e., > enforced as written, it is insulated from attack under the Free Exercise > Clause, even if the rule is entirely pointless and unnecessary, or serves > only the most modest of aesthetic interests. That of course is the problem > with *Smith*. > > > > 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 *Hillel Y. Levin > *Sent:* Wednesday, February 25, 2015 10:33 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Anti-discrimination, legislative compromise, and strict > scrutiny > > > > Thanks Doug. > > > > Would the same logic apply to beard length regulations on city police > forces? Suppose there was a legislative (or reasoned department) judgment > that well-kept beards are an acceptable exception to the general "clean > shaven" policy, and that in order to effectuate that judgment, they provide > that beards must be no longer than one inch. This will be true for people > with skin conditions, people with religious reasons for facial hair growth, > and people who enjoy the warmth or look of the beard. There is thus no > value judgment whatsoever, and an admittedly arbitrary line is drawn in > order to prevent members of the force from looking disheveled. > > > > Along comes a religious objector who claims that his beard must be 1.25 > inches long, or one who claims that his religion prohibits him from ever > shaving. (Assume sincerity, and indeed, there are such religious practices.) > > > > Does strict scrutiny apply? Does it pass strict scrutiny? > > > > On Wed, Feb 25, 2015 at 10:01 AM, Doug Laycock <dlayc...@virginia.edu> > wrote: > > Strict scrutiny would not be triggered under *Smith/Lukumi*, principally > because the legislated exemptions are for religious objectors, do not > discriminate on the basis of faith or denomination, and are a reasonable > legislative effort to exempt the cases where the claim to religious > exemption is strongest. Therefore, they do not imply a value judgment that > secular reasons for exemption are more important than religious reasons for > exemption. They imply only a judgment that religious reasons for exemption > are stronger in very small businesses that generally are personally run by > the owner than in larger and generally more impersonal businesses. Of > course that generalization is not perfect, and the precise line drawn > between large and small is inevitably arbitrary. But there is no > discrimination between religious and secular. > > > > 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 *Hillel Y. Levin > *Sent:* Wednesday, February 25, 2015 5:53 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Anti-discrimination, legislative compromise, and strict > scrutiny > > > > Friends: > > > > As you are likely aware, the LDS church recently announced support for > legislation prohibiting discrimination on the basis of sexual orientation > in Utah, so long as such legislation included religious accommodations. LDS > leaders were not explicit about the precise contours of the accommodations > they seek, but I have the distinct sense that they would insist on broader > accommodations than have been written into law elsewhere. > > > > Suppose that supporters of anti-discrimination legislation were able to > accept a compromise with LDS leaders that included accommodations for some > for-profit service providers/employers/landlords so long as gays and > lesbians could find alternative providers without much difficulty. (Similar > to pharmacist conscience clauses with respect to dispensation of > contraception in some states.) Alternatively, suppose that categorical > exceptions were carved out for small businesses and small-time landlords. > Hypothetically, what if businesses with fewer than 20 employees were > excluded from coverage, as were landlords with fewer than 5 properties. > > > > Now suppose that a religious objector who did not meet the criteria for > the religious accommodation or categorical exception sued under the FEC. > Given the exceptions built into the compromise legislation, would strict > scrutiny automatically apply, under the theory that with the compromise > legislation, the law is not generally applicable? And if so, how would the > case come out, given that the compromise legislation necessarily drew > somewhat arbitrary lines? > > > > I am aware that the question of what triggers strict scrutiny is subject > to considerable debate in the literature, and that those who require a > showing of animus to trigger Lukumi's strict scrutiny would not find any > here. But for those who do not believe that animus is required, how would > this come out? > > > > My sense is that this difficulty might stand in the way of any legislative > compromise. > > > > -- > Hillel Y. Levin > Associate Professor > > University of Georgia > School of Law > 120 Herty Dr. > Athens, GA 30602 > (678) 641-7452 > hle...@uga.edu > hillelle...@gmail.com > SSRN Author Page: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 > > > > > _______________________________________________ > 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. > > > > > > -- > > Hillel Y. Levin > Associate Professor > > University of Georgia > School of Law > 120 Herty Dr. > Athens, GA 30602 > (678) 641-7452 > hle...@uga.edu > hillelle...@gmail.com > SSRN Author Page: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 > > _______________________________________________ > 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. > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
_______________________________________________ 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.
