Lily on RLUIPA, response 1

Lily on RLUIPA, response 1

Perhaps the attorneys arguing the RLUIPA case before the Supreme Court made the decision to address it through an Establishment Clause analysis rather than a Free Exercise Clause analysis for tactical reasons, rather than because it was really the best theoretical framework for their argument. Generally speaking, the type of remedy one is seeking in a free exercise setting is different from the remedy sought in an establishment clause setting.

If you are asserting a free exercise violation, you're saying, OK, here's this law, and y'all are welcome to enforce it against the general public; but you should make an exception for little old me, because enforcing it against me would violate my right to freely exercise my religion. Example: in Smith, as Andrew has mentioned, a group of Native Americans was challenging a statute prohibiting the consumption/abuse of controlled substances. They argued that they were entitled to have the statute re-written to include an exception for them, because smoking peyote was part of their religious rituals, and the state was infringing on their free exercise rights by enforcing the statute against them. (They lost, as Andrew has noted.) Importantly, the plaintiffs in Smith were not trying to get the whole statute invalidated; they just wanted an exception to be made for themselves.

Conversely, in an Establishment Clause setting, a plaintiff is seeking an entirely different remedy. Plaintiffs suing under the Establishment Clause typically want the challenged state action or statute to be completely invalidated, so that it will apply to no one. An example would be a case where the government puts up a nativity scene display around Christmastime. Generally, when a government-sponsored display includes a creche alone, a court is not going to allow it; the government will have to take it down, and nobody will be able to look at it.

In the present case, it sounds like maybe the remedy the plaintiffs are seeking is an invalidation of the entire RLUIPA statute, as opposed to an exemption from it just for themselves. Thus the Court's Establishment Clause jurisprudence lends itself better than the Free Exercise jurisprudence does, to the goal that plaintiffs ultimately want to achieve. Andrew, Mike, and I observed a similar phenomenon when we were all in Chapel Hill, watching the unfolding controversy over the University of North Carolina's summer reading assignment of a book entitled, Approaching the Q'uran. There, the plaintiff-students challenged the summer reading assignment on an Establishment Clause basis, not a Free Exercise Clause basis. They wanted to invalidate the whole summer reading program, not obtain an exemption from it personally. Like the RLUIPA briefs, the briefs in the UNC case did not address free exercise. (The plaintiffs lost this one, too, incidentally; but the University on its own initiative granted them personal exemptions from the assignment.)

Perhaps some of us have heard the adage, "Bad cases make bad law." In the present discussion, I guess bad brief writing is what makes the bad law. I can't really think of any way to alter the remedy structure of the establishment/free exercise jurisprudence (can y'all?) So I guess what we really need is plaintiffs who are more interested in obtaining the fairest result than imposing their own views on others, and thus would be willing to accept the humbler free exercise remedy than the sweeping establishment clause remedy.....