tag:blogger.com,1999:blog-7321349.post114057202010016786..comments2024-03-18T22:21:33.261-07:00Comments on The Debate Link: Partial RestorationDavid Schraubhttp://www.blogger.com/profile/04946653376744012423noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-7321349.post-1141152650223428352006-02-28T10:50:00.000-08:002006-02-28T10:50:00.000-08:00To be sure, Establishment and Free Exercise cases ...To be sure, Establishment and Free Exercise cases are tough. (And fun!)<BR/><BR/>The Court has previously sought to have government avoid “undue entanglements” with religion. While Quinn quotes a journalist to say that the decision “moved decisively to keep the government out of a church’s religious practice,” in fact it moved to insert the Court into those practices. Rather than saying that government has not need to scrutinize religious practices because it applies its laws uniformly regardless, the RFRA says that government must stick its nose into the details of each person’s religious practices. Now government is compelled to discriminate. People engaged in identical behavior should receive different treatment based solely on each individual’s religious views. Looks like Establishment Clause Violation in a Box to me; just add plaintiff and stir.<BR/><BR/>Admittedly, the Establishment Clause issue wasn’t squarely raised in this case. Here the Ashcroft gang conceded the sincerity of the religious practice in question. But how long will it take for a cop to bust a group of atheist hippies on pot, and for the hippies to argue that passing a bong is part of a decades-old tradition in their world view, deserving protection under the RFRA? Or a flasher to argue that he feels compelled to live life unadorned, just as his Earth Mother made him? What will happen when the police come across a blog by one of the members of the UDV Church saying that she doesn’t actually believe in the church’s teachings, but merely participates cuz mom and dad make her. Can the cops now prosecute that member individually, cuz her faith isn’t “sincere”? We’re gonna have undue entanglements by the bucketful. <BR/><BR/>Yeah, I know, the feds have been in the faith-judging business for a while now. The IRS and tax courts opine about whether someone’s practices qualify for tax-exempt status. Selective Service gets to say whether a draftee’s aversion to violence is sincere. Sherbert v. Verner says government may consider someone religious views for purposes of awarding unemployment compensation. And Cutter v. Wilkinson says that a statute requiring prisons to make special accommodations for prisoners’ religious practices doesn’t violate the Establishment Clause on its face. Of course. None of these practices violate the Clause on their face. But the opportunity for discrimination is so great, and the standard to be applied is so amorphous, that these policies simply invite dissension. <BR/><BR/>I hope it all works out ok. I actually like the idea of government accommodating maximum freedom of conscience. But I can’t help feeling queezy about making government protections depend upon government scrutiny of a person’s sincerity. I will not be surprised if a future court concludes that, while these practices are facially neutral, government cannot help but apply them in a biased manner. <BR/><BR/>Freedom through objectivity! Indifference for all!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7321349.post-1140578534307696112006-02-21T19:22:00.000-08:002006-02-21T19:22:00.000-08:00As responded to on TMV...They're not "out of a hat...As responded to on TMV...<BR/><BR/>They're not "out of a hat"--at the point where the Religious Freedom Restoration Act says in the text of the act "we're restoring the <EM>Sherbert</EM> 'compelling state interest test'" because they dislike <EM>Smith</EM>, then I think in a case where the Court has to apply the RFRA, it's not dart-throwing on my part to explain what <EM>Sherbert</EM> said and the history behind <EM>Sherbert</EM> and <EM>Smith</EM>. That's statutory construction 101. <BR/><BR/>I'm confused as to what you actually want here. Since the RFRA specifically uses the words "compelling interest test" in its text, it's kind of unfair to criticize the Court for applying that standard. Court's have to apply the statute in front of them (be it the constitution or a federal law)--they don't just get to make stuff up. That's what we would call judicial activism. So saying the CIT is bad might indict Congress for writing it into the RFRA, or the <EM>Sherbert</EM> Court for creating the test in the first place, but not the UVA Court for applying the text of the statute in front of them. <BR/><BR/>Is the standard too vague? I don't think so, for two reasons. First, all guideline standards are necessarily vague--that's how they can applied as a general rule rather than specifically to one case. If Andrew can give a more specific rule that also can cross-apply to a variety of RFRA claims, I'd love to hear it, but I'm really skeptical that's even possible and think it puts a wildly unfair burden on the Court. This also takes out the argument that I need to give a "solid definition" of CIS. I think that's premature--I think the government should say in each case "here's our interest, and here's why it's compelling." Then the Court looks at that analysis and says "yeah, that's true" or "no, you're idiotic." That's case-by-case--but the Supreme Court does, in fact, judge each case separately, so I don't really think that's a problem. Moreover, that there is some subjectivity in CIS doesn't make it completely nihlistic. "Don't kill" people is pretty obviously a CIS, "don't walk on the lawn" pretty clearly isn't. Is preventing harassment? Perhaps a closer call--but again, that's why we have litigation. There will be tough cases under any standard--that's hardly a reason to reject the principle of general rules. <BR/><BR/>But also, the "compelling interest test" is SO prevelant in law that its contours are pretty clearly defined by precedent. It's not just the cases I cite (<EM>Sherbert</EM> and <EM>Cantwell</EM>)--I could literally fill a page just citing cases where "strict scrutiny" was applied. A Lexis keyword search of "Strict Scrutiny" got 56 Supreme Court cases in the past 10 years alone, "compelling interest" got 55. With all that text in front of us, I think the term has gotten enough common law interpretation to prevent it from being infinitely mallable. That actually makes the CIT test qualitatively better than any test Andrew can think of, because all the precedent behind it means that it can interpreted in congruence with our body of law as a whole, rather than be this free-floating "gap" (as Andrew might put it) in an otherwise very coherent fundamental rights doctrine we've developed. <BR/><BR/>And finally, the "slippery slope" argument is a logical fallacy--pretty much for the reasons I outlined in the post (though I didn't directly make the argument). Slippery Slope arguments say that "if we do X, we'll have to do Y, and even though X might not be so bad, Y is really bad, so we can't do X." The problem is that if Y is that bad, we should be able to think of some reason to treat if differently from X--which is exactly what the compelling interest test let's us do. If they ARE indeed exactly the same, then I'd be very skeptical that Y is actually that much worse than X. Human sacrifice, for example, IS different in important ways from drug use, and it's perfectly sensible to treat them differently.David Schraubhttps://www.blogger.com/profile/04946653376744012423noreply@blogger.comtag:blogger.com,1999:blog-7321349.post-1140574402292884642006-02-21T18:13:00.000-08:002006-02-21T18:13:00.000-08:00As I commented on TMV...All you really do in this ...As I commented on TMV...<BR/><BR/>All you really do in this article is give the slippery slope a name - you don't provide any solid definition for "compelling interest of the state" ... and no, pulling two decisions out of a hat does not a clear precedent make.Anonymousnoreply@blogger.com