Academic Legal Writing - Eugene Volokh [115]
In ¶ 46 to ¶ 48, the article deals with the religious organization cases, which less clearly fit within the exceptions set forth by Smith; but it points to specific language in Smith that could be read—and, the article argues, likely would be read—as covering such cases. At the same time, the article doesn't overstate its argument: It acknowledges that these cases “stand a greater chance of being affected by Smith,” though “this possibility remains slight.” The caution about these assertions makes the article more credible when it makes more confident assertions. (My sense, by the way, is that this prediction by the article has been proved correct: Religious organizations have generally been winning such claims since Smith, for reasons similar to those the article suggests.)
Finally, ¶ 49 and ¶ 50 deal with a case that clearly would come out differently under Smith. But even there, the article gives concrete factual details that suggest Smith might not change much: 4 out of 8 Justices deciding the case at the Supreme Court level, 1 one out of 3 judges deciding the case at the Court of Appeals level, and 1 one out of the 2 courts deciding this issue would have decided against the claimant even before Smith.
C. The Prisoners' Cases
[¶ 51] The five successful free exercise claims brought by prisoners were, save one, all judged under a less exacting standard than the compelling interest test. Moreover, the one case judged under a compelling interest test involved a claim similar to one successfully made by another prisoner in a case analyzed under a “reasonableness” test. Other tests applied by the courts varied from rational basis to intermediate scrutiny.154 The immediate significance of these cases lies in the fact that prisoner claims had always been, and still are, adjudged under a distinct standard, and thus will not be affected by Smith. The larger significance of these cases lies in the irony that of the few successful free exercise claims brought, nearly half were decided under a standard offering apparently less protection to the religious adherent than the compelling interest test. These cases suggest that it may be the claim itself, rather than the test applied, that is most determinative of success or failure.
[¶ 52] The claims brought by prisoners involved fairly fundamental civil liberties. Two involved the right to govern one's appearance (specifically hair length) in accordance with one's religious dictates. Two involved the right to receive religious literature, and one involved the right to legal recognition of a name changed because of religious conversion. It is instructive to contrast the nature of these claims with the nature of those brought outside of the prison context. It seems fairly clear that claims brought by prisoners, on the whole, concern rights and infringements of a more basic and fundamental nature than those brought by non-prisoners.160
[¶ 53] It is difficult, if not impossible, to imagine a legislature ever attempting to limit the public's religious rights in the same manner that the prisoners' rights in these cases were limited. The greater restrictions placed on prisoners are, no doubt, in part due to the unique nature of prisons and the greater need for control in such a setting. But the restrictions may also be due to the fact that prisoners cannot rely on the political process for protection of their rights and liberties, whereas those outside of prison can. Prisoners' liberties are subject to the control of persons over whom they have no influence or control. If this distinction is a significant one, which it seems to be, the prisoner cases help demonstrate—by contrast—how much protection the public receives from the political process. In other words, one reason those outside of prison are not litigating issues involving restrictions on such basic liberties may be because they do not have to—their basic liberties, unlike the prisoners', have already been secured.
[¶ 54] These cases also demonstrate that