Dear Chip,
I'm probably just echoing Eugene's earlier comment but, for what it's
worth, I think your claim that "[n]o one who embraced Scalia's description
of limits on the judicial role could be a fan of RFRA, unless perhaps it
turned out that RFRA helped his friends" might overstate things a bit
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 --
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. Recal
Dear Chip -
Yes, thanks, your response helps me understand your position.
Rick
Sent from my iPhone
On Feb 18, 2015, at 6:16 PM, Ira Lupu wrote:
Dear Rick:
Yes, I think you are just echoing Mark and Eugene when you emphasize the
distinction between pre-Smith free exercise adjudication and RFR
I thought Smith was wrong at the time. I now think it is mostly right albeit
with an unworkable, even naive standard of “neutral and generally applicable” —
which was and is meaningless in a regime of accommodations (how are such laws
neutral or generally applicable?). But the idea that religio
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
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 Smit
http://www.atg.wa.gov/uploadedFiles/Home/News/Press_Releases/2015/Arlene%27s%20Flowers%20summary%20judgment.pdf
Earlier today, a state court judge in Washington granted summary judgment
on the merits against Arlene's Flowers and its owner Barronelle Stuzman. I
believe this is the first judicial de
