As you read Smith, you will notice that the key issue in the post-Smith world of Free Exercise is the boundary line between laws the are neutral and generally applicable, and laws that are not neutral or not generally applicable. Consider the following hypos concerning three states that decide to prohibit alcoholic beverages. State A enacts a total prohibition of possession and distribution of alcoholic beverages. State B prohibits only the sacramental use of alcoholic beverages. State C enacts a nearly-total prohibition of alcoholic beverages, but the law contains an exception (enacted at the request of lobbyists for the hotel and restaurant industry) that allows alcoholic beverages to be served to guests at hotels and with meals at restaurants.
Assume all 3 laws are enforced against communion wine at religious services. Is there a Free Exercise claim in State A? State B? State C?
What about a federal law, designed to protect animal rights, requiring all animals slaughtered for consumption to be killed by lethal injection. Prof. Ravitch, who suggested this hypo, observes that this law would effectively prohibit Kosher meat from being produced anywhere in the United States. Should the Free Exercise Clause protect Kosher observance from a law such as this? Would it under Smith?
Suppose a state passes a generally applicable law requiring all businesses providing goods or services to the public to be open from 6 AM to 10 PM 7-days-a-week. Does the FEC protect family businesses who wish to close on their Sabbaths? What about Chick-fil-A and Hobby Lobby?
No comments:
Post a Comment