Volokh's Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review, 4th by Volokh Eugene

Author:Volokh, Eugene [Volokh, Eugene]
Language: eng
Format: epub
Publisher: Foundation Press
Published: 2010-09-01T04:00:00+00:00

INTRODUCTION

[¶ 1] As perhaps befits the subject, the nature of the academic discussion surrounding the Free Exercise Clause is largely just that: academic. Erudite and often esoteric, the discussion contains numerous theoretical expositions on the proper approach to the Free Exercise Clause, either alone or in tandem with the Establishment Clause. There are arguments on the proper relationship between government and religion, theories on how best to define religion, expositions of the history of the clause, and a recognition of the inability of courts and society to deal properly with adherents of minority religions. For all the discussion, however, very little attention is paid to the actual cases, save those that are decided in the United States Supreme Court. Even these cases often receive only scant recognition—the author pausing long enough to explain how and why the Court erred—on the way toward yet another theory of free exercise. Lower court cases, at either the appellate or trial level, are hardly mentioned at all.

[¶ 2] This inattention to how courts have actually been treating the free exercise claimant may explain why the reaction to Employment Division v. Smith has been so vehement. In that case the U.S. Supreme Court denied an exemption from Oregon's drug laws for the religious use of peyote by two members of the Native American Church. In so doing, the Court also altered the language of free exercise jurisprudence. Prior to that decision, the Court purported to grant extensive protection to religious liberty. The government could not pass or enforce a law that burdened the exercise of religion unless the law was the least restrictive means of attaining a compelling societal interest.

[¶ 3] In Smith, however, the Court abandoned the compelling interest test. By a 5-4 vote, (Justice Sandra Day O'Connor concurred on different grounds), the Court held that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Writing for four members of the majority, Justice Antonin Scalia made it clear that no longer can an “individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”

[¶ 4] Members of the media, academics, members of Congress, and religious interest groups greeted the decision with condemnation and despair. A lead editorial in the Los Angeles Times denounced the decision as an exercise of “pure legal adventurism.” Of the sixteen law review articles and notes written on the case, all but one condemned the result. Professors Edward M. Gaffney, Douglas Laycock and Michael W. McConnell described the decision as a “sweeping disaster for religious liberty.” Congressman Stephen J. Solarz’ reaction was even more dramatic: “With the stroke of a pen, the Supreme Court has virtually removed religious freedom from the Bill of Rights.” Kim Yelton, director of government relations of Americans United for Separation of Church and State,

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