Academic Legal Writing - Eugene Volokh [116]
Dealing with potential counterexamples is such an important topic that it's worth discussing again here. Five of the successful Free Exercise Clause claims involved prisoners' rights. The reader might well assume that, if anything, this means the courts would have provided even stronger Free Exercise Clause protection for claims brought by lawabiding citizens. The five cases therefore look at first like an important rebuttal to the article's thesis.
The article responds in three ways.
1. The article points out that, doctrinally, prisoner Free Exercise Clause cases have been treated differently from nonprisoner cases (at least since O'Lone). That's potentially helpful: If the Court treats the two categories of cases radically differently, this treatment suggests that the categories are indeed importantly different, and that therefore it makes sense for scholars to treat the categories differently.
But standing alone, the doctrinal argument is limited. As noted above, the reader might infer that the difference cuts in the direction of concluding that the courts are interpreting the Free Exercise Clause quite forcefully—if even prisoners win their religious freedom claims, the reader might think, then surely ordinary citizens would, too.
2. So to dispel this possible impression, the article points to the facts of the cases: The prisoner victories involved restrictions that are much more serious than the restrictions under which free citizens labor. It may well be, then, that the prisoner victories shouldn't be counted alongside the nonprisoner victories (or perhaps just the one nonprisoner victory) in evaluating the protectiveness of the pre-Smith regime for ordinary citizens. Rather, the prisoner cases would be properly treated the way the doctrine treats them—as entirely separate matters.
3. The article then offers more theoretical support for why the courts indeed treat prisoner cases differently (beyond the extra magnitude of the restrictions on prisoners): Law-abiding citizens have much more access to the political process than prisoners do, and therefore courts have felt less need to protect law-abiding citizens' religious freedom claims.
Such combinations of doctrinal, practical, and theoretical arguments or explanations tend to be much more effective than doctrinal, practical, or theoretical arguments standing alone.
III. Possible Responses to Smith
There's much value in just laying out the facts about what has happened. But many readers want news they can use: They want to know how the newly uncovered facts about pre-Smith strict scrutiny might affect what people should do in the future. That's what the article turns to now.
A. The Religious Freedom Restoration Act
[¶ 55] Initially introduced in the summer of 1990 and reintroduced the next June, the RFRA seeks to reestablish the compelling interest test. The Bill states that the “Government shall not burden a person's exercise of religion even if the burden results from a rule of general applicability,” unless the government “demonstrates that application of the burden to the person—(1) is essential to further a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” The Bill is to apply to federal, state, and municipal governments, and to statutes adopted before and after the passage of this Bill. It places the burdens of going forward with the evidence and of persuasion on the