If I understand it right, I think Eric's second paragraph is a better way
of putting it than I did. I suggested that the compelling-interest test
is lighter in the Free Exercise context than in the Free Speech context.
Eric is saying, "No, it's the same test--there are just more compelling
governm
Chris --
I don't think you should read as much as you do into "sensible balances" in O
Centro, since it is after all a quote from the statute. In fact, the way I read
it, the Court quotes the statute to affirm what Congress did, namely define the
full-throated compelling interest test as a met
Alan is too modest for shameless plugs, but he has written very thoughtfully
about the need for more fine-grained analysis of free exercise questions, with
multiple tests depending on context, in an article in 2006 or so. I think it's
called Taking Free Exercise Seriously.
On Sun, 17 Jun 2012 2
Let me continue Mark and Eugene and Chris' thoughtful line of thinking here.
First, it may, indeed, be appropriate to use some form of intermediate level of
scrutiny in some free exercise cases. It may also be appropriate to use a
higher or lower standard of review in other cases. It has never
I think our levels of scrutiny are too involved and that there are too many. I
think the court stumbled upon a way forward in the abortion limitation cases
with the "undue burden" test. It changes the focus properly to the the fact
that almost any regulation will burden somebody's liberty or ri
I wanted to send out a thought relating to earlier posts by Mark Graber and
Eugene Volokh. They suggest an intermediate standard of review, somewhere
between strict scrutiny and Smith. I think they are right on the key point.
The usual “strict scrutiny” standard – i.e., strict in theory, fata
Bob,
I think you’re right that these are the kinds of hot-button controversies
where state RFRAs could realistically come into play. It’s not spousal
abuse or men marrying 12 year old children, as some of the commercials
talked about (http://www.youtube.com/watch?v=14ngnqGR6e8/).
Another
