Academic Legal Writing - Eugene Volokh [189]
24 As Professor McConnell observed, the problems caused by the opinion's poor use of legal sources “are of lesser interest, for they might have been overcome (or at least mitigated) by writing the opinion in a different way.”
32 The majority opinion, for example, suggests that “hybrid” claims (such as a free exercise claim coupled with a free speech claim) will still be subject to the compelling interest test. For discussion of hybrid claims and further ways to limit the holding, see infra Part III.C.1.
33 See Appendix B for a list of these cases, and see infra part II for a discussion. A ten year period was chosen, somewhat arbitrarily, in an attempt to ensure a significant and representative sample of cases. Although there have been federal appellate court decisions since Smith, this Note focuses on those prior to Smith in an effort to assess the importance of the compelling interest test. It would be impossible to make this assessment by looking at cases subsequent to Smith simply because that test is, in most cases, no longer being applied.
37 The fact that such a diverse group coalesced in petitioning the Court for rehearing and in support of the RFRA suggests that religious groups can indeed bond together for political gain. For further discussion of this point, see infra Part III.C.4.
39See, e.g., McConnell, supra note 15, at 1110. McConnell asserts that the “free exercise doctrine was more talk than substance. In its language, it was highly protective of religious liberty.... In practice, however, the Supreme Court only rarely sided with the free exercise claimant, despite some very powerful claims.” See also Ira C. Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 Harv. L. Rev. 933 (1989). Lupu notes in this article that although the “constitutional standard can be quite protective of religion ... courts have not always employed the standard with full rigor.”
40 374 U.S. 398 (1963). The case involved a free exercise claim brought by a Seventh-Day Adventist, who challenged South Carolina's refusal to grant her unemployment compensation after she was terminated from her job for refusing to work on Saturday, the day of her Sabbath.
44 Justice Burger suggested as much when he remarked that “probably few other religious groups or sects could make” such a “convincing showing” that they were entitled to an exemption from compulsory school laws.
56See, e.g., McConnell, supra note 15, at 1110. Professor McConnell recognizes that the Supreme Court, after 1972, “rejected every claim requesting exemption from burdensome laws or policies to come before it except for those claims involving unemployment compensation, which were governed by clear precedent.” Yet he argues that “[t]his did not mean that the compelling interest test was dead, however. There were many more applications of the doctrine in the state and lower federal courts ....” It is unclear whether McConnell equates applications with victories, and it is unfortunate that he fails to cite even one case in support of his assertion.
XIX. A SAMPLE HIGHLY SUCCESSFUL STUDENT ARTICLE
* Consider, for instance, the eleven states in which state courts had accepted religious exemption claims under the Free Exercise Clause (see p. 382 n.58 in this book). In the years after Smith was decided, five of these states read their state constitutions' religious freedom provisions as applying something like pre-Smith strict scrutiny. Two more of the states might do so in the future, but have yet to consider the question post-Smith. Three more might have done so, but such a result became unnecessary when the state legislatures enacted RFRA-like statutes. And only one of the eleven has expressly followed Smith as to its state constitution.
74 Professor Marshall offers an explanation of why courts, in general, may be reluctant to confront whether denying a particular claimant an exemption is the least restrictive means. Marshall, supra note 15, at 312. He observes that the exemption balancing process, if undertaken, will normally