Academic Legal Writing - Eugene Volokh [107]
As it happens, religious claimants still had many more state-level defeats than state-level victories. And there may be good reason to treat state decisions differently. Among other things, state courts are free to grant exemptions under the Free Exercise Clauses of their own constitutions, even if such exemptions aren't required under the federal Free Exercise Clause; so Smith's redefinition of the federal Free Exercise Clause may indeed have only a limited effect on state courts.* Nonetheless, it would have been helpful for the article to include the state appellate cases, or to explicitly discuss and justify its decision not to mention those cases.
Yet again this is a suggestion for how an already excellent article could have been made even more useful. The article remains a great success despite this limitation.
A. The Losing Cases
[¶ 20] As described above, the Supreme Court rejected free exercise claims by fudging what it considered to be a “compelling interest” and what it considered to be a burden. So too did the courts of appeals, when confronted with serious claims. Courts of appeals readily accepted less than compelling government interests and were reluctant to consider some significant state intrusions as burdens on religious practices. The language of the compelling interest test, in other words, proved to be an easily surmountable obstacle to courts intent on rejecting free exercise claims, and the courts' application of that test often presented the claimant with the same Catch-22 described above.
1. Less Than Compelling Interests
[¶ 21] That courts were willing to accept government interests that hardly seemed compelling is well illustrated by the case of United States v. Slabaugh. A member of the Amish faith, who was indicted on one count of bribing a public official, objected to having his photograph taken on the ground that it violated his free exercise rights. The court accepted his belief as sincere, but nonetheless rejected his claim, stating that the photograph serves the “compelling” government interests of, first, protecting the public safety “by aiding law enforcement agencies in the identification and apprehension of fugitives” and, second, insuring “the proper supervision of individuals on probation.”
[¶ 22] Although this holding appears reasonable on its face, the claimant in this case dressed and wore a beard in a manner unique to the Amish. The court acknowledged this fact, but dismissed it: “Although Slabaugh's appearance is distinctive when he is compared with one who is not Amish, if Slabaugh were to surround himself with other Amish people, he would not stand out in the eye of a law enforcement official.” Even this argument, though strained, seems plausible.
[¶ 23] But Mr. Slabaugh had only one arm! The government thus had to contend that a photograph of Mr. Slabaugh was the most effective way of identifying him, and that without it law enforcement officials would not be able to pick him out of a crowd. The court ostensibly ignored the fact that this argument was being made about a one-armed Amish man and accepted the government's contention completely: “A photograph of Slabaugh is the most effective solution to this problem,” the court wrote, “especially if it becomes necessary for people who are not acquainted with him personally to search for him.”
As Part IV.B suggested, you should usually synthesize the precedents, rather than summarizing each one;