Academic Legal Writing - Eugene Volokh [119]
[¶ 65] One could also turn to the suggestion of Reverend Dean M. Kelley of the National Council of Churches, and some members of his coalition, who recognize that the Supreme Court has “diluted the compelling State interest threshold in the past 27 years.” They have suggested that religious practices be restricted only when they threaten “public health and safety.” One could even look back to James Madison, finally, who once suggested that free exercise be protected “in every case where it does not trespass on private rights or the public peace.”
[¶ 66] As for the burden side of the free exercise balance, Professor Lupu has suggested adopting a common law test. Under this test, a government action would be burdensome if an analogous act committed by a private party “would be actionable under general principles of law.” For instance, application of this test to the Native Americans in Lyng, would find their free exercise rights to be burdened. The tribes would have had a strong easement claim against a private land owner, if that land owner—as the government did—tried to exclude the tribes from burial grounds on the land owner's property.
[¶ 67] Although it is difficult to predict how the adoption of any of these reformulations would affect the outcome of free exercise cases, there seem to be two significant difficulties confronting these suggestions. The first is deciding which one to choose. It is unclear whether any particular one could garner enough support in or outside of Congress to secure its adoption. The second, and more debilitating obstacle, is preventing judicial circumvention of the new standard. It is questionable whether the insertion of adverbs before “compelling,” such as “truly” or “really,” would insure that courts strictly scrutinize proffered state interests. Although certain stricter formulations would certainly make it more difficult for judges to reject as many claims as they do now, based on their past performances it seems that judges are up to the task.
[¶ 68] After all, Justice Burger was fairly clear in Yoder when he wrote that only “interests of the highest order” could prevail over legitimate free exercise claims. Perhaps providing specific examples of such interests, or inserting “very” before “highest” would lead to more favorable outcomes for free exercise claimants, but the cases examined suggest that courts, for various reasons, are extremely reluctant to side with them. As long as that reluctance continues, it seems difficult to imagine a test of general applicability that would prevent courts from reaching the outcomes they desire.
C. Limiting Smith and Focusing on the Legislature
1. Avoiding the Holding in Smith
[¶ 69] As alluded to earlier, the Smith decision itself suggests how its holding may be limited. First, the Court states that “hybrid” claims will still be subject to the compelling interest test. Such claims could potentially limit this holding quite substantially. For there appear to be numerous free exercise claims that also involve (or could involve) a free speech, freedom of association, or parental rights claim, to name the three “constitutional” protections the Court cites. Taken together, these hybrid cases may offer protection in a wide array of contexts in which free exercise claims arise.203
[¶ 70] Second, the Court reaffirmed its tradition of remaining neutral in intra-religious disputes. The Court evidenced no intention of becoming involved in controversies within churches over religious authority or dogma. Third, Smith does not apply to laws that directly target religion, or to actions that intentionally discriminate against religions. Fourth, it appears that free exercise claims brought in the unemployment context will still be judged under a compelling interest test. Fifth, Smith