Academic Legal Writing - Eugene Volokh [191]
107 This is not to say that the fear is justified. Whether it is or not, the point is that it may nonetheless exist.
108 As Justice Scalia stated, in response to Justice O'Connor's “parade of horribles” comment, the purpose of his parade was:
not to suggest that courts would necessarily permit harmful exemptions from these laws (though they might), but to suggest that courts would constantly be in the business of determining whether the “severe impact” of various laws on religious practice (to use Justice Blackmun's terminology) or the “constitutiona[l] significan[ce]” of the “burden on the particular plaintiffs” (to use Justice O'Connor's terminology) suffices to permit us to confer an exemption.
Justice Scalia's point seems to be that one reason courts should not be in the business of granting exemptions is because they would then constantly have to consider the merits not only of claims but of religious beliefs. Although Justice Scalia exaggerates the likely frequency of such claims, his recognition is a valid one: there is no principled way of determining ex ante whether a particular religion should be exempted from a particular statute. Considering the rather unprincipled and ad hoc nature of the cases already, one can understand a court's reluctance to create a precedent that could be used in a case of little or no merit. For in those cases, the holding would likely have to turn on the sincerity, centrality, or even validity of the beliefs in question.
109 Justice Stevens, concurring in Goldman v. Weinberger, 475 U.S. 503 (1986), expressed this very concern in explaining why he did not rule in favor of Captain Goldman, who desired an exemption from Air Force dress regulations in order to wear his yarmulke:
The very strength of Captain Goldman's claim creates the danger that a similar claim on behalf of a Sikh or a Rastafarian might readily be dismissed as ‘so extreme, so unusual, or so faddish an image that public confidence in his ability to perform his duties will be destroyed.’ If exceptions from dress code regulations are to be granted ... inevitably the decisionmaker's evaluation of the character and the sincerity of the requester's faith—as well as the probable reaction of the majority to the favored treatment of a member of that faith—will play a critical part in the decision.
112 As the prison cases demonstrate, courts are willing to protect religious liberty when necessary, i.e., when the political process does not. Thus, the argument being made is that courts do not appear protective of religious liberty because many of the most important protections have already been granted through legislation.
145 Jensen v. Quaring, 472 U.S. 478 (1985) (per curiam). That four Justices were willing to deny even this claim speaks volumes of the weak protection afforded by the compelling interest test.
154 ... Prior to the 1987 case of O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987), courts of appeals varied in the standards they applied to prisoners' free exercise claims, as is apparent from the six cases discussed here. See Matthew P. Blischak, Note, O'Lone v. Estate of Shabazz: The State of Prisoners' Religious Free Exercise Rights, 37 Am. U. L. Rev. 453, 467-70 (1988), for a general discussion of the different standards employed. In O'Lone, the Supreme Court dispelled the confusion among the lower courts and held that valid prison regulations that infringe upon inmates' free exercise of religion must “reasonably relate[] to legitimate penological interests.” Thus a rational basis test is now to be applied, by all courts, in assessing such claims.
One prisoner case was originally decided prior to O'Lone and applied strict scrutiny to uphold an inmate's free exercise claim challenging the prison's hair length requirement. The Supreme Court vacated and remanded the case in light of O'Lone, and the Second Circuit reheard the case, now applying the prison context equivalent of the rational basis test. Upon rehearing,