Academic Legal Writing - Eugene Volokh [118]
[¶ 60] In a statement that captures perfectly the hollowness of the protection afforded by a compelling interest test, and the contradiction between the avowed purpose of the RFRA and its likely effect, Senator Biden claimed that the RFRA would simultaneously “protect religious freedom and still prevent the use of peyote.”183
[¶ 61] Although accomplishing little, passage of the RFRA could also affirmatively hamper attempts to secure protection for religious exercise. It seems possible that after passing this legislation, Congress—and state legislatures—could be content to allow courts to determine when exemptions should be granted. Rather than drafting exemptions into pending legislation, legislatures may wish to avoid such issues altogether, particularly if they are controversial. That legislatures, when possible, dodge controversial issues and in effect delegate such issues to the courts for resolution, is hardly a novel observation.
[¶ 62] It is plausible that such a phenomenon could occur in the area of free exercise exemptions. Content that they had done their part in passing the RFRA, Congress might then turn a deaf ear to future requests for specific statutory exemptions.185 If this were to occur, the religious adherent would have only the courts to rely upon for protection. But courts, as already documented, are not very reliable. To make matters worse, it seems particularly unlikely that a legislature would override a court decision that applied a compelling interest test in denying a specific exemption. To do so would embroil the legislature in the very controversy they, by hypothesis, wished to avoid in the first place, forcing legislators not only to confront the controversy, but to exacerbate it by overturning the court's resolution of the issue. The free exercise claimant, having had her day in court and probably having lost there, would thus most likely have nowhere else to turn for redress.
Note again that the arguments are concrete and pragmatic. It's perfectly legitimate, of course, to make theoretical arguments about moral right and wrong. But in practice the more concrete and pragmatic arguments, or concrete and pragmatic arguments that are tied to the theoretical arguments, tend to be more persuasive.
The arguments in this subsection are also speculative: The article talks about what “could” happen, and what “is plausible.” But readers recognize that all claims about the outcome of proposed new statutes (or legal doctrines) are necessarily speculative. They just want speculation:
1. that is founded on facts (and Part II gave ample facts to support the speculation that reestablishing strict scrutiny is unlikely to be much help to religious objectors),
2. that is based on well-defended inferences from those facts, and
3. that doesn't overstate its case by claiming that something will certainly happen in the absence of strong evidence that it will indeed certainly happen.
B. Establishing a New Test
[¶ 63] Another possible response to Smith is formulating a test that would be more protective of free exercise rights. Such a formulation could restrict what constitutes a compelling state interest and relax what constitutes a burden. Numerous suggestions on how to accomplish the former have already been made. Professor Stephen L. Pepper, for example, suggests that courts determine if there is a “real, tangible (palpable, concrete, measurable), nonspeculative, non-trivial injury to a legitimate, substantial state interest.”
[¶ 64] Professor McConnell alone has offered no less than three possibilities. He suggests framing the inquiry as whether the religious practice is repugnant to the “‘peace’ or ‘safety’ of the state.” Alternatively, when minority religions are involved, he suggests that courts ask: “Is the governmental interest so important that the government would impose a burden of this