Academic Legal Writing - Eugene Volokh [108]
In this article, some discussion of the individual cases is necessary, because the article's original contribution lies precisely in the findings about the cases: The cases came out against the claimants, something that is relevant even now that the cases no longer illustrate the current legal rule (since Smith has rejected the cases' underlying analytical framework). Nonetheless, it's important to keep the case discussion tight.
The article does a good job of that. There's no unneeded procedural background. There's little superfluous factual background. (The article doesn't strictly need to mention that the Amish man was indicted for bribery, but the mention is short, and helps make the discussion more vivid.)
Instead, the article sets forth the essential facts of the case; the result; the relevant legal analysis; and then a concrete factual explanation of why the analysis is mistaken (¶¶ 22-23). As usual, it's the concrete factual explanation—such as the weakness of the government's “must have photograph” argument when the claimant has only one arm—that is especially vivid, memorable, and persuasive. (It might also have helped to point out that “has only one arm,” while not a perfectly unique identifier, is probably more reliable than a photograph, given that many people look similar and that people's appearance often changes.)
[¶ 24] Although not as comical, a Tenth Circuit case illustrates a common tendency of courts to accept with little discussion or reasoning the government's apparently compelling interest. In re Grand Jury Proceedings of Doe involved a fifteen-year old Mormon boy who objected on religious grounds to testifying against his mother at a grand jury proceeding. After acknowledging that the child's belief was sincere, and that forcing him to testify would run “against the command of his deeply held religious beliefs,” the court turned to the government's interest:
[¶ 25] After an individual demonstrates that certain government action places a substantial burden on his religious practice, that burden must be balanced or weighed against the importance of the government's interest. In the instant case, the government has demonstrated a compelling interest in investigating offenses against the criminal laws of the United States. We hold that claimed First Amendment privileges asserted here are outweighed by the government's interest in investigating crimes and enforcing the criminal laws of the United States.
[¶ 26] The court's acceptance of the government's proferred interest in this case is instructive, and representative of a number of cases, in two ways. First, it is illustrative of how little some courts questioned the government's interest, and how quick they were to assume that such an interest existed and was compelling. Second, it demonstrates how courts in some cases did not even consider whether disallowing an exception to a government law or regulation was actually necessary to achieve the state's avowedly important interest. In other words, courts often failed to inquire whether denying an exemption was the least restrictive means of achieving the government's interest. Instead they simply focused on whether the particular law or policy, in general, represented a compelling government interest. Not surprisingly, they often found that it did.74
[¶ 27] For some courts the mere fact that a law or regulation existed sufficed to demonstrate a compelling state interest. In Potter v. Murray City, for example, the court revisited the issue of religiously motivated polygamy, decided first in the 1878 Supreme Court case of Reynolds