Academic Legal Writing - Eugene Volokh [194]
271 Members of the Muslim faith won one free exercise claim. Islamic Ctr. v. City of Starkville, 840 F.2d 293 (5th Cir. 1988). Jehovah's Witnesses won another. Paul v. Watchtower Bible & Tract Soc'y, 819 F.2d 875 (9th Cir. 1987). And a third was won by a woman who though an avowed Christian was not affiliated with an organized religion. Quaring v. Peterson, 728 F.2d 1121 (8th Cir. 1984), aff'd sub nom. Jensen v. Quaring, 472 U.S. 478 (1985). It is interesting to note that whereas all three claimants could be fairly said to belong to minority religions, only Islamic Center involved a non-Christian religion.
275 Eighty-nine percent of Americans claim to be affiliated with a religious group. There is simply no other single group in the country that could boast such a membership.
279 For example, briefs were filed in Wisconsin v. Yoder, 406 U.S. 205 (1972), by the General Conference of Seventh-Day Adventists, the National Council of the Churches of Christ, the National Jewish Commission on Law and Public Affairs, and the Synagogue Council of America. None of these religions require exemption from school attendance in the way the Amish do. Another example is Bowen v. Roy, 476 U.S. 693 (1986), a case in which Native Americans objected to obtaining a social security number for their two-yearold daughter, claiming that it would violate their religious beliefs. Amicus briefs were filed by the Catholic League for Religious and Civil Rights and the Rutherford Institute (a conservative religious and antiabortion group). It is arguable that in both cases, those groups filing amicus briefs believed a favorable outcome for the religious group involved could somehow apply to them. Even so, this does not detract from the fact that they offered their support.
280 An illustrative appellate case is In re The Bible Speaks, 869 F.2d 628 (1st Cir. 1989), in which members of The Bible Speaks church challenged a bankruptcy court's finding that a former member of their congregation had fraudulently procured gifts for the church. The Council on Religious Freedom and the National Council of the Churches of Christ filed amicus briefs in the case.
284 See also Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 Va. L. Rev. 747 (1991). Professor Klarman points out that the Court has rarely taken a leading role in protecting such civil liberties as freedom of speech and suffrage, and concludes that “we should not kid ourselves into believing that our cherished civil liberties tradition depends as much on judicial review as many lawyers would have us believe.”
285 This lesson of Smith lends support to the more general critique of the importance of judicial review. In what has become a famous statement of this critique, Learned Hand remarked:
I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.
Learned Hand, The Spirit of Liberty 189-90 (3d ed. 1960). If one believes that the legislatures represent, to some degree, what lies in the hearts of men and women, Learned Hand's assertion seems correct at least as regards freedom of religion. For it has been the legislatures, not the courts or the Constitution, that have provided the real protections of religious liberty.
3. Here's how
APPENDIX I: CLUMSY WORDS AND PHRASES
1. Basic Editing, p. 141
* For those who want a detailed explanation:
The parenthetical “(the ‘bill’)” adds nothing new; in a memo that discusses one bill, it's clear what you're referring to when you say “the Act” or “the bill.”
“Inconsequential” isn't quite idiomatic; one can have inconsequential arguments, but one rarely hears of an “inconsequential law.”
“Piece of legislation