Free Exercise: Prof. Linder's Questions

Let's talk about some of the questions posed by Prof. Linder:

"4. After Smith, it would be possible for a state to prosecute a priest or minister who offers communion wine for distributing alcohol to a minor. Is such a prosecution likely to occur? Why not? Does this suggest that the real losers in Smith are religions that have relatively few adherents, and especially those that are unpopular?

5. What in the Constitution supports applying a different and more deferential standard when it is a military regulation, rather than a civilian regulation, that is alleged to impinge upon constitutional liberties (as the Court suggested in Goldman)? Would it be better to apply the same standard, recognizing (of course) that national security is an interest of the highest order?

6. Lukumi Babalu Aye holds that government may not target a religious practice for prosecution. Suppose a state where concerned about a religious sect that practiced the handling of poisonous snakes in its worship services. How might the state draft a law that would avoid the constitutional problems that Hialeah encountered with its law attempting to deal with animal sacrifice?

7. What do you think about the argument of Justice Stevens in the Boerne case: that to grant the Catholic Church an exemption from zoning laws that would not be given to a non-religious institution violates the Establishment Clause? How would you resolve the tension between the Free Exercise Clause and Establishment Clause?

11. Could you suggest a way in which Hialeah could redraft its ordinances to effectively prohibit animal sacrifice without violating the Free Exercise Clause or criminalizing widely accepted forms of animal killing? "