RE: Breaking news in federal RFRA case

[Volokh, Eugene]

And if the federal government doesn't like it, they can just amend
RFRA to make clear that drug laws aren't covered.  That, I think, helps
makes the concerns about the Court's institutional competence less
significant.  The Congress tells the Court to make the first-cut
decision in these cases.  The Court makes this, as best it can (and
while it may have less institutional competence to decide drug policy
questions generally, it at least has the advantage of the record related
to *religious objections* specifically, and religious objections
touching on this particular drug, something that Congress didn't
squarely consider at first).  Then if Congress thinks the results are
bad enough, it can correct it.

Not much different, as I've argued before, from the
common-law-making process.  I'm not sure that courts are really that
remarkably competent at crafting contract law, tort law, property law,
and the like; they're not awful but I'm sure they often get things
wrong, and lack the ability to take a big-picture view in some
situations.  But so long as their decisions are subject to legislative
review, this institutional competence concern is less severe than if
they were making the final decision (as under Sherbert and Yoder).  The
RFRA regime really is logically and (potentially) functionally different
from the Sherbert/Yoder regime.

Eugene

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of
[EMAIL PROTECTED]
Sent: Tuesday, February 21, 2006 9:49 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Breaking news in federal RFRA case


I am not going to belabor the point, Marty, but I strongly disagree with
your interpretation of the application of standards of review.  The
strict scrutiny standard puts the courts in the business of
second-guessing legislative judgment, normally where there is a lurking
constitutional violation.  RFRA strict scrutiny is not triggered by any
lurking constitutional error, but rather bare second-guessing.  Trying
to normalize what RFRA demands -- imposition of a constitutional
standard of review through legislation (which is only reflected in
RLUIPA) is a mistake in my view.

In this case in particular, the inadequacies of the courts are shown.
The Supreme Court was in no position to investigate whether this drug is
different from peyote, or, more importantly from my point of view,
whether the drug is routinely given to minors (as it is).  Had this
specific exemption request been part of a legislative inquiry, the
regular use by minors could have been taken into account, and, I
presume, the compelling interest for denying its use documented.  There
was no place for such an inquiry in the Court's appellate review.  In
any event, the Court is absolutely right that the federal government
asked for it, and here they have it.

Marci


In a message dated 2/21/2006 12:29:30 P.M. Eastern Standard Time,
[EMAIL PROTECTED] writes:
I know we've been over this ground many times, but perhaps it's still
worth clarifying:

It's not a delegation of a "policy" decision -- it's asking the courts
to apply a legal standard.  For instance, in this case, it was Congress
that decided that the sky would not fall with the peyote exemption, and
the federal government that failed to explain why the harms in this case
would be any worse or different than in the peyote case.  This was basic
analogic reasoning, applying a statutory standard -- everyday stuff for
the judiciary.  Nor was it beyond the Court's ken to conclude --
correctly -- that the exemption would not be required if the
treaty-based consequences would be severe, but that the government had
not demonstrated that the consequences of breaching the treaty would in
fact be as draconian as the State Department alleged.
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RE: Breaking news in federal RFRA case

[Friedman, Howard M.]

For anyone interested, I have a blog post
up on O Centro giving my preliminary thoughts on the case:

 http://religionclause.blogspot.com/2006/02/preliminary-thoughts-on-todays-o.html 
(It also links to an earlier posting merely describing the holding.)

 



*
Howard M. Friedman

Disting. Univ. Professor Emeritus
University of Toledo
 College of Law
Toledo, OH
 43606-3390 
Phone: (419) 530-2911, FAX (419) 530-4732 
E-mail: [EMAIL PROTECTED] 
* 











From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman
Sent: Tuesday, February 21, 2006
11:33 AM
To: Law
 & Religion issues for Law Academics
Subject: Re: Breaking news in
federal RFRA case



 



On the contrary:  The Court
comes right out and says to the government:  "See, we told you this
would happen -- that's why we decided Smith the way we did. 
But you had to go ahead and pass RFRA anyway, so here's what you get . . .
"





 





Well, this is how the Chief puts it,
but I think the "You made your bed . . . " subtext is manifest:







We
have no cause to pretend that the task assigned by Congress to the courts under
RFRA is an easy one. Indeed, the very sort of difficulties highlighted by the
Government here were cited by this Court in deciding that the approach later
mandated by Congress under RFRA was not required as a matter of constitutional
law under the Free Exercise Clause. See Smith,
494 U. S.,
at 885,890. But Congress has determined that courts should strike sensible
balances, pursuant to a compelling interest test that requires the Government
to address the particular practice at issue.









- Original Message - 





From: Brad M
Pardee 





To: Law
& Religion issues for Law Academics 





Sent: Tuesday,
February 21, 2006 11:25 AM





Subject: Re:
Breaking news in federal RFRA case





 




Does
this decision affect Employment Division Vs. Smith?  The quote below makes
it sound like it is revisiting the same issue.  One can only hope!


Brad


Mark Tushnet
wrote on 02/21/2006 09:12:53 AM:

> "the Court ruled unanimously that the
government may not ban a religious 
> from using a herbal tea that contains a
substance that the government 
> considers to be harmful. The Chief Justice
wrote the opinion. Only new 
> Justice Samuel A. Alito, Jr., did not take
part." -- from SCOTUS Blog







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Re: Breaking news in federal RFRA case

[Hamilton02]

I am not going to belabor the point, Marty, but I strongly disagree with 
your interpretation of the application of standards of review.  The strict 
scrutiny standard puts the courts in the business of second-guessing legislative 
judgment, normally where there is a lurking constitutional violation.  RFRA 
strict scrutiny is not triggered by any lurking constitutional error, but rather 
bare second-guessing.  Trying to normalize what RFRA demands -- imposition 
of a constitutional standard of review through legislation (which is only 
reflected in RLUIPA) is a mistake in my view.
 
In this case in particular, the inadequacies of the courts are shown.  
The Supreme Court was in no position to investigate whether this drug is 
different from peyote, or, more importantly from my point of view, whether the 
drug is routinely given to minors (as it is).  Had this specific exemption 
request been part of a legislative inquiry, the regular use by minors could have 
been taken into account, and, I presume, the compelling interest for denying its 
use documented.  There was no place for such an inquiry in the 
Court's appellate review.  In any event, the Court is absolutely right 
that the federal government asked for it, and here they have it.
 
Marci
 
 
In a message dated 2/21/2006 12:29:30 P.M. Eastern Standard Time, 
[EMAIL PROTECTED] writes:

  I know we've been over this ground many times, but perhaps it's still 
  worth clarifying:
   
  It's not a delegation of a "policy" decision -- it's asking the courts to 
  apply a legal standard.  For instance, in this case, it was 
  Congress that decided that the sky would not fall with the peyote 
  exemption, and the federal government that failed to explain why the harms in 
  this case would be any worse or different than in the peyote case.  This 
  was basic analogic reasoning, applying a statutory standard -- everyday 
  stuff for the judiciary.  Nor was it beyond the Court's ken to conclude 
  -- correctly -- that the exemption would not be required if the 
  treaty-based consequences would be severe, but that the government had 
  not demonstrated that the consequences of breaching the treaty would 
  in fact be as draconian as the State Department 
alleged.

 
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Re: Breaking news in federal RFRA case

[Marty Lederman]

I know we've been over this ground many times, but perhaps it's still worth 
clarifying:
 
It's not a delegation of a "policy" decision -- it's asking the courts to 
apply a legal standard.  For instance, in this case, it was 
Congress that decided that the sky would not fall with the peyote 
exemption, and the federal government that failed to explain why the harms in 
this case would be any worse or different than in the peyote case.  This 
was basic analogic reasoning, applying a statutory standard -- everyday 
stuff for the judiciary.  Nor was it beyond the Court's ken to conclude -- 
correctly -- that the exemption would not be required if the 
treaty-based consequences would be severe, but that the government had not 
demonstrated that the consequences of breaching the treaty would in 
fact be as draconian as the State Department alleged.

  - Original Message - 
  From: 
  [EMAIL PROTECTED] 
  To: religionlaw@lists.ucla.edu 
  Sent: Tuesday, February 21, 2006 12:19 
  PM
  Subject: Re: Breaking news in federal 
  RFRA case
  
  
  With all due respect, Mark, Congress did not "choose" any policy with 
  RFRA, because it sought only to overturn Smith and never considered the vast, 
  vast majority of instances where RFRA would apply.  This is delegation to 
  the courts ---which are not competent to make such determinations --  to 
  make policy decisions.  That is what is fundamentally wrong with 
  RFRA.  
   
  Marci
   
   
   
  In a message dated 2/21/2006 12:15:55 P.M. Eastern Standard Time, 
  [EMAIL PROTECTED] writes:
  
But whatever RFRA means, Congress chose to enact it 
and thus chose not to ban those practices that are protected under 
RFRA.
 
  
   
  
  

  ___To post, send 
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RE: Breaking news in federal RFRA case

[Douglas Laycock]

No, Congress did choose a 
policy.  It chose not to regulate religion except where such regulation is 
clearly necessary.  It instructed courts to apply that policy to individual 
cases, which are far too vast in number for Congress to resolve one by 
one.  Also, perhaps less admirably, some of them are politically difficult 
for Congress to resolve one by one.   But there is nothing unusual 
about that.
 
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
   512-232-1341 (phone)
   512-471-6988 (fax)
 


From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of 
[EMAIL PROTECTED]Sent: Tuesday, February 21, 2006 11:19 
AMTo: religionlaw@lists.ucla.eduSubject: Re: Breaking news 
in federal RFRA case


With all due respect, Mark, Congress did not "choose" any policy with RFRA, 
because it sought only to overturn Smith and never considered the vast, vast 
majority of instances where RFRA would apply.  This is delegation to the 
courts ---which are not competent to make such determinations --  to make 
policy decisions.  That is what is fundamentally wrong with RFRA.  

 
Marci
 
 
 
In a message dated 2/21/2006 12:15:55 P.M. Eastern Standard Time, 
[EMAIL PROTECTED] writes:

  But whatever RFRA means, Congress chose to enact it 
  and thus chose not to ban those practices that are protected under 
  RFRA.
   

 
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Re: Breaking news in federal RFRA case

[Hamilton02]

With all due respect, Mark, Congress did not "choose" any policy with RFRA, 
because it sought only to overturn Smith and never considered the vast, vast 
majority of instances where RFRA would apply.  This is delegation to the 
courts ---which are not competent to make such determinations --  to make 
policy decisions.  That is what is fundamentally wrong with RFRA.  

 
Marci
 
 
 
In a message dated 2/21/2006 12:15:55 P.M. Eastern Standard Time, 
[EMAIL PROTECTED] writes:

  But whatever RFRA means, Congress chose to enact it 
  and thus chose not to ban those practices that are protected under 
  RFRA.
   

 
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RE: Breaking news in federal RFRA case

[Scarberry, Mark]

In a real sense this is *not* a case holding that "the 
government may not ban" a religious practice (to use the language quoted 
from the very valuable SCOTUS blog). Instead, it is a case in which the 
government has, by enacting a statute (RFRA),  *chosen not to ban* a 
religious practice. RFRA amends the otherwise applicable statute that would 
otherwise ban the practice. We may argue about what RFRA means, about how to 
apply it to different factual settings, and about whether it is 
constitutional (though that seems to be decided now). But whatever RFRA means, 
Congress chose to enact it and thus chose not to ban those practices that are 
protected under RFRA.
 
Mark S. Scarberry
Pepperdine University School of 
Law
 
 


From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of Douglas 
LaycockSent: Tuesday, February 21, 2006 8:57 AMTo: Law 
& Religion issues for Law AcademicsSubject: RE: Breaking news in 
federal RFRA case

This is a RFRA case, not a free exercise case, so it does 
not affect Smith.  But it does show that the Court is willing to take RFRA 
seriously and enforce it according to its terms.  It may also have a 
persuasive effect on state courts interpreting state RFRAs.
 
Douglas Laycock
University of Texas Law 
School
727 E. Dean Keeton St.
Austin, TX  78705
   512-232-1341 
(phone)
   512-471-6988 
(fax)
 


From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of Brad M 
PardeeSent: Tuesday, February 21, 2006 10:26 AMTo: Law 
& Religion issues for Law AcademicsSubject: Re: Breaking news in 
federal RFRA case
Does this decision affect Employment Division Vs. Smith? 
 The quote below makes it sound like it is revisiting the same issue. 
 One can only hope! Brad Mark Tushnet 
wrote on 02/21/2006 09:12:53 AM:> "the Court ruled unanimously that 
the government may not ban a religious > from using a herbal tea that 
contains a substance that the government > considers to be harmful. The 
Chief Justice wrote the opinion. Only new > Justice Samuel A. Alito, Jr., 
did not take part." -- from SCOTUS Blog
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RE: Breaking news in federal RFRA case

[Douglas Laycock]

This is a RFRA case, not a free exercise case, so it does 
not affect Smith.  But it does show that the Court is willing to take RFRA 
seriously and enforce it according to its terms.  It may also have a 
persuasive effect on state courts interpreting state RFRAs.
 
Douglas Laycock
University of Texas Law 
School
727 E. Dean Keeton St.
Austin, TX  78705
   512-232-1341 
(phone)
   512-471-6988 
(fax)
 


From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of Brad M 
PardeeSent: Tuesday, February 21, 2006 10:26 AMTo: Law 
& Religion issues for Law AcademicsSubject: Re: Breaking news in 
federal RFRA case
Does this decision affect Employment Division 
Vs. Smith?  The quote below makes it sound like it is revisiting the same 
issue.  One can only hope! Brad Mark Tushnet wrote on 
02/21/2006 09:12:53 AM:> "the Court ruled unanimously that the 
government may not ban a religious > from using a herbal tea that 
contains a substance that the government > considers to be harmful. The 
Chief Justice wrote the opinion. Only new > Justice Samuel A. Alito, Jr., 
did not take part." -- from SCOTUS Blog
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Re: Breaking news in federal RFRA case

[Marty Lederman]

On the contrary:  The Court comes right out 
and says to the government:  "See, we told you this would happen -- that's 
why we decided Smith the way we did.  But you had to go ahead and 
pass RFRA anyway, so here's what you get . . . "
 
Well, this is how the Chief puts it, but I think 
the "You made your bed . . . " subtext is manifest:

  We have no cause to pretend that the 
  task assigned by Congress to the courts under RFRA is an easy one. Indeed, the 
  very sort of difficulties highlighted by the Government here were cited by 
  this Court in deciding that the approach later mandated by Congress under RFRA 
  was not required as a matter of constitutional law under the Free Exercise 
  Clause. See Smith, 
  494 U. S., at 885,890. But 
  Congress has determined that courts should strike sensible balances, pursuant 
  to a compelling interest test that requires the Government to address the 
  particular practice at issue.

  - Original Message - 
  From: 
  Brad 
  M Pardee 
  To: Law & Religion issues for Law 
  Academics 
  Sent: Tuesday, February 21, 2006 11:25 
  AM
  Subject: Re: Breaking news in federal 
  RFRA case
  Does this decision affect Employment 
  Division Vs. Smith?  The quote below makes it sound like it is revisiting 
  the same issue.  One can only hope! Brad Mark Tushnet wrote on 
  02/21/2006 09:12:53 AM:> "the Court ruled unanimously that the 
  government may not ban a religious > from using a herbal tea that 
  contains a substance that the government > considers to be harmful. The 
  Chief Justice wrote the opinion. Only new > Justice Samuel A. Alito, 
  Jr., did not take part." -- from SCOTUS Blog
  
  

  ___To post, send 
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Re: Breaking news in federal RFRA case

[Brad M Pardee]

Does this decision affect Employment Division Vs.
Smith?  The quote below makes it sound like it is revisiting the same
issue.  One can only hope!

Brad

Mark Tushnet wrote on 02/21/2006 09:12:53 AM:

> "the Court ruled unanimously that the government may not ban
a religious 
> from using a herbal tea that contains a substance that the government

> considers to be harmful. The Chief Justice wrote the opinion. Only
new 
> Justice Samuel A. Alito, Jr., did not take part." -- from SCOTUS
Blog
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Re: Breaking news in federal RFRA case

[Lawyer2974]

Can anything be read into the unanimous nature of the opinion and Roberts 
being its author...Is this some indication that Roberts is going to be a 
consensus builder on at least certain issues?
 
Donald C. Clark, Jr.Counselor at LawBannockburn Lake 
Office Plaza I2333 Waukegan RoadSuite 160Bannockburn, Illinois 
60015(847) 236-0900 (telephone)(847) 236-0909 
(facsimiles)
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Re: Breaking news in federal RFRA case

[Marty Lederman]

Here's the opinion:
 
http://scotus.ap.org/scotus/04-1084p.zo.pdf
 
It's rather remarkable -- and, in my humble 
opinion, almost completely correct in all its particulars, especially (i) 
explaining that the peyote exemption fairly forecloses the government's theories 
about potential harms here; and (ii) requiring the government to 
demonstrate, not simply assert, that our violation of the 
treaty, which RFRA requires, will lead to devastating international 
consequences.
 
The one thing Roberts doesn't quite pull off is 
explaining why Hernandez is not a response to the peyote 
argument.  (In Hernandez, the Court held that the existence of a 
patchwork of tax exemptions did not undermine the government's need to deny a 
religious exemption.)
 
P.S.  Although I'm sure Marci will disagree, I 
read the opinion as basically putting the final nail in the argument that 
RFRA/RLUIPA are unconstitutional.
 
 
- Original Message - 
From: "Mark Tushnet" <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law" 
; 
"Law & Religion issues for Law Academics" 
Sent: Tuesday, February 21, 2006 10:12 
AM
Subject: Breaking news in federal RFRA 
case
> "the Court ruled unanimously that the government may not ban a 
religious > from using a herbal tea that contains a substance that the 
government > considers to be harmful. The Chief Justice wrote the 
opinion. Only new > Justice Samuel A. Alito, Jr., did not take part." -- 
from SCOTUS Blog> > -- > Mark Tushnet> Georgetown 
University Law Center > 600 New Jersey Ave. NW> Washington, DC 
20001> 202-662-9106 (voice)> 202-662-9497 (fax)> > 
___> 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.>
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Breaking news in federal RFRA case

[Mark Tushnet]

"the Court ruled unanimously that the government may not ban a religious 
from using a herbal tea that contains a substance that the government 
considers to be harmful. The Chief Justice wrote the opinion. Only new 
Justice Samuel A. Alito, Jr., did not take part." -- from SCOTUS Blog


--
Mark Tushnet
Georgetown University Law Center 
600 New Jersey Ave. NW

Washington, DC 20001
202-662-9106 (voice)
202-662-9497 (fax)

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