Academic Legal Writing - Eugene Volokh [104]
This apparent shift led, among other things, to the introduction of the Religious Freedom Restoration Act of 1990 (RFRA), designed essentially to reestablish the compelling interest test. The Bill is supported by a large bipartisan group within Congress, and by a diverse coalition of religious groups outside of Congress.
This Note, though, will argue that enacting the RFRA in order to reestablish the compelling interest test is a largely futile endeavor. Despite the obvious change Smith brought to the language of free exercise doctrine, the impact of the decision on the outcome of free exercise cases will likely be insignificant.
First, free exercise claimants, both in the Supreme Court and the courts of appeals, rarely succeeded under the compelling interest test, despite some powerful claims. A survey of the decisions in the United States courts of appeals over the ten years preceding Smith reveals that, despite the apparent protection afforded claimants by the language of the compelling interest test, courts overwhelmingly sided with the government when applying that test. And all these victories except one came in cases that would have probably come out in the claimant's favor under Smith, because of the several caveats contained in Smith itself that can readily be used to limit the scope of its holding.
Second, religious groups experience relative success in the political arena. Exemptions for religious groups already exist in numerous state and federal statutes. Numerous religious antidiscrimination statutes are also already in place. Indeed, many of the “free exercise” cases in the courts of appeals involved determining whether a particular individual or religious group fit within an extant statutory exemption. To the extent that religious groups are able to form coalitions, there is little reason to think that they will not continue to achieve political victories....
In this version, the claim would begin in paragraph four, not paragraph eight. Readers would thus more quickly see the value added by the article; if the claim begins in paragraph eight, some busy readers might stop reading before then.
Still, the article's success shows that plenty of readers did stay until paragraph eight. And the way the author framed the Introduction does have a good deal going for it. The article mixed the “start with an argument or conventional wisdom you want to rebut” mode (see p. 58) and the “start with an explanation of the controversy” mode (see p. 55)—a good way to show the reader the importance of the issue, and the likely value of the future claim. And by showing that the article was arguing against the weight of conventional wisdom, the Introduction helped persuade the reader that reading the article would yield novel, nonobvious, and useful information.
I. FREE EXERCISE CLAIMS IN THE SUPREME COURT: A BRIEF REVIEW
[¶ 13] It is widely recognized in academic literature that free exercise claimants, even prior to Smith, did not fare well in the Supreme Court. A sharp divergence existed between the apparent protection afforded by the compelling interest test and the actual success of the free exercise claimant.39 In fact, since establishing the test in Sherbert v. Verner40 in 1963, the Court rejected thirteen of the seventeen free exercise claims it heard. Moreover, three of the four victories involved unemployment compensation and thus were governed by the explicit precedent of Sherbert. In a sense, only one of the four winning cases, Wisconsin