Academic Legal Writing - Eugene Volokh [113]
This section is especially important because it involves seeming counterexamples to the article's thesis. The article has to explain why the thesis is valid despite the counterexamples, while still dealing with the counterexamples accurately and fairly, and without appearing defensive. Observe closely how the article does this.
[¶ 42] Of the seven claims that won, and that were not brought by prisoners, three seem least likely to be affected by Smith. The first involved an instance of intentional and fairly blatant discrimination against a particular religion. In Islamic Center of Mississippi, Inc. v. City of Starkville, the Islamic Center challenged the City Board's refusal to grant it an exception to a zoning ordinance. The ordinance prohibited the use of buildings as churches on property located near the University of Mississippi. Twenty-five churches, all Christian, already occupied sites in the restricted area. The Islamic Center was the only church ever denied an exception, and the Board denied their request even though the building on property immediately adjacent to theirs was being used as a church.
[¶ 43] While recognizing the general validity of zoning ordinances as applied to churches, the court held that the City had failed to “act in a religiously neutral manner when it rejected an exception for the Islamic Center.” In essence, the case involved the unfair and discriminatory treatment by a city government of a particular religion, and thus differed from a simple request for an exception to a generally applicable law. Even after Smith, as the Supreme Court intimated in that case, this type of claim would still be subject to strict scrutiny.
[¶ 44] The second case, International Society for Krishna Consciousness, Inc. v. Barber, involved a hybrid claim of free speech and free exercise. As already mentioned, such claims would still be subject to the compelling interest test after Smith. In Smith, the Court asserted that the only decisions in which it had held that the First Amendment required an exemption to a general law involved the Free Exercise Clause “in conjunction with other constitutional protections, such as freedom of speech and of the press.” Whether one agrees with the accuracy of this characterization of precedent, it is nonetheless a clear statement that “hybrid” claims, such as the one in Barber, would still be analyzed under a compelling interest test.
[¶ 45] The third case involved a question of statutory interpretation, namely, whether a union member was entitled to withhold union dues because of his religious beliefs. Title VII of the Civil Rights Act of 1964 requires employers and labor organizations to “reasonably accommodate” employees' religious observances or practices, unless such accommodation would cause the employer or union undue hardship. The question in Nottelson v. Smith Steel Workers D.A.L.U. 19806 was thus whether allowing the claimant to withhold dues would subject the union to undue hardship, and the court held that it would not. Although the claimant's argument was ultimately grounded in the Free Exercise Clause, the case turned primarily on an already existing statutory exemption. There is no indication in the language of Smith that the analysis of such questions should or will be any different after Smith.
[¶ 46] Another three of the seven cases stand a greater chance of being affected by Smith, although this possibility remains slight. Each of these cases involved intra-religious disputes. The first case