Academic Legal Writing - Eugene Volokh [190]
78 It is interesting in this respect to note the particular facts of this case. The plaintiff “made an undisputed showing that his two wives consented to the plural marriage, and that the wives and five children of the marriages receive love and adequate care and attention and do not want for any necessity of life.” Potter, 760 F.2d at 1069. Granting an exemption to this plaintiff would necessarily open the courts to similar claims, but it would not necessarily result in further exemptions being granted. Future claimants may be unable to make the same showing as this plaintiff, namely, that his family is a caring and functional one, and courts could reject claims based on such a distinction. Denying an exemption to the plaintiff in Potter thus may be better understood as helpful to judicial economy and administration rather than as necessary to accomplish the state's general interest in preventing polygamy.
83See, e.g., Smith v. Board of Educ., 844 F.2d 90 (2d Cir. 1988). In this case an orthodox Jewish student objected to his school's holding graduation ceremonies on Saturday, his Sabbath day. In rejecting his claim, the court held that “we believe that the burden being placed on David Smith's free exercise of his religious beliefs simply makes the practice of his religion more difficult than the practice of other religions but that it is not the type of burden on core religious freedom rising to the level of a violation of the free exercise clause.”
89 A brief comparison of two cases further illustrates this point. The first is the polygamy case, Potter v. Murray City, 760 F.2d 1065 (10th Cir. 1985), discussed supra notes 75-78 and accompanying text. As may be recalled, the state's compelling interest in that case was supplied primarily by the existence of criminal laws prohibiting polygamy. The second case is Messiah Baptist Church v. County of Jefferson, 859 F.2d 820 (10th Cir. 1988). In that case, members of the Baptist Church challenged the county zoning laws that forbade their building a church on a piece of land they owned. After making the questionable assertion that “the record contains no evidence that building a church or building a church on the particular site is intimately related to the religious tenets of the church,” the court held that the claimants had failed to demonstrate how the zoning laws burdened their religious practices. This was not a case, after all “where the church must choose between criminal penalties ... and its religious benefits.” One presumes that had it been such a case, the claimants would have succeeded in demonstrating a burden. Yet Potter demonstrates that the claimants would have also succeeded in demonstrating the state's compelling interest.
91 This is evidenced by the courts' weighing the state's interest in the entire law or regulation in question rather than weighing merely the state's interest in denying a particular exemption from that law. See supra notes 73-78 and accompanying text for examples of cases in which courts characterized the state's interest in the manner described here.
92 This skewed balancing is done implicitly in the manner described in the preceding footnote. Why courts are not more forthright in their consideration of future claims when deciding particular cases may be due to the fact that the language of the compelling interest test seems to forbid such a consideration.
105 Justice O'Connor, in Smith, uses this phrase