I'd think you could get away with something like that on time, place and manner exceptions, but not if you're allowing favored groups to do it but not panhandlers.

This sets up a fascinating conflict between Section 2 of the 14th Amendment (which explicitly endorses felon disenfranchisement) and the 24th Amendment (which bans the poll tax).

This is now law. 4/5, have anything to add since this is from Florida.

I'm not familiar with the application of the 14th Amendment, S2, so I really have no idea how this will play out. Maybe you can shed some light on that. The 24th Amendment argument, on the other hand, appears very straight forward, and as someone who thinks photo ID laws probably run afoul of the 24th Amendment, you can guess where I'll probably come down on this. It's disappointing because Florida voters had actually done something right for once.

To be clear, I agree with you on this, as well as photo ID laws if you have to pay any money to get them--though I think the Equal Protection Clause would strike it down even if they were free.

Here's §2, bolded mine:

Now, the text is specifically related to enumeration (and that would pose a twist on the upcoming census), but Richardson v. Ramirez held (by an ideologically split Court) that the bolded implies that felon disenfranchisement was explicitly endorsed by the ratifiers of the 14th Amendment. I would expect that this Court, on a similar ideological split, will do the same here.

Either that, or Roberts can recycle his bullshit "it's a tax, not a penalty" line from NFIB v. Sebelius and invert it in this case to suit his needs.

If a photo ID is free, why on earth can't we just do that as part of voter registration? Put the photo frame on an app, get all the appropriate information. The same as you do when you get a drivers license.

Seems like you could easily have a free photo ID as part of the registration process. If you can carry a clipboard with forms around surely you can do this with a phone and an app. Just do the processing at the state level and mail the id if possible or hell keep it at the local precinct so when the person comes by they can pick it up when they vote. That way they don't even have to have a mailbox.

Not only do I agree with this, but I also think such a distinction should violate the totality of the Free Speech/Press Clause, for reasons I explained earlier in this thread.

Hell yeah, let's make attacking journalists a hate crime. Let's make journalists a protected class. Let's put people in jail for calling Jake Tapper "little wet egg boy".

It's been awhile. But the Supreme Court is going to be hearing an establishment clause case tomorrow, so what better place than here, what better time than now to discuss freedom of religion.

As a brief intro to the idea, freedom of religion is found in the 1st Amendment, which says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

The first portion of the sentence is known as the establishment clause and has been interpreted as preventing the federal government (or the states via the 14th Amendment) from establishing an official state religion or from giving preferential treatment for certain religions. Establishment clause cases often center around public schools and religious symbols in public buildings like courthouses. An issue for the past couple of decades has been related to school voucher programs that allow families to use taxpayer dollars in the form of a voucher to pay for some of the cost of tuition at a religious school. Currently the Supreme Court uses a 3 part test known as the Lemon Test to determine whether or not a public policy violates the establishment clause. 1. Does it have a secular purpose? 2. Does it promote or inhibit a religion? 3. Is it excessive entanglement of government and religion? The 3rd question is obviously the most subjective and therefore probably leads to most of the controversy.

The second part of the sentence is the free-exercise clause, which has been interpreted to allow people to practice the religion of their choice. Some examples of controversy with the free-exercise clause include things like laws that ban ritual animal sacrifice and drug laws that include bans on substances even if used as part of religious ceremonies. It seems that the Court has often tried to determine the intent of the law when deciding whether or not a law violates the free-exercise clause. Oh, and free-exercise was also the catalyst for homeschooling and religious-based exceptions for students.

Anyway, this post is really just trying to provide some background on freedom of religion, in future posts we can discuss tomorrow's case specifically as well as other religious issues more broadly.

all the people who are so for religion in school better be ready to accept all religions, otherwise it will be an even more of a shit show than it is now

My ideal interpretation of the Religion Clause is that it should be seen as one singular clause, and not broken up into two between the Establishment and Free Religion Clauses. The simplest way to put this interpretation is "government shall neither favor nor disfavor religion". This includes multiple religions against each other, and any religion against irreligion.

Splitting this up into two, in my opinion, has resulted in some unfortunate and bad rulings. I'll start with the Free Exercise Clause, and specifically Sherbert v. Verner. This ruling allowed people to argue for exemptions from laws on religious grounds, and set up a test very similar to strict scrutiny on Equal Protection clauses at that. I think this was a horrible decision that perverted the Religion Clause as a whole, as government now had to favor religion over irreligion in exemptions from law.

Thankfully, the Court recognized its error and overturned Sherbert in Employment Division v. Smith, removing this exemption from neutrally applied laws. Unfortunately, Smith came down at a time when there was considerable sympathy for religion both on the left (for protecting historically oppressed religions) and the right (for protecting traditional Christianity). This union regrettably resulted in the Religious Freedom Restoration Act, which reinstated the Sherbert test statutorily instead of constitutionally. The federal RFRA was ruled unconstitutional as applied to state and local governments in City of Boerne v. Flores, but majority did so on separation of powers grounds, not Religion Clause grounds. This resulted in a lot of state RFRAs being passed, many of them even worse than the federal one (hello, Indiana).

However, John Paul Stevens's concurrence in Boerne was short and absolutely perfect to demonstrate why all RFRAs should be unconstitutional:



Moving onto the Establishment Clause side, I think that what 4/5 mentioned with the third prong of the Lemon test is indeed problematic and unnecessary. I don't think there's any need to get into "entanglement" if you just stick to what I've laid out as applying "government shall neither favor nor disfavor religion".

Given that, I think that any sort of government orchestration of religion is a violation. There are obvious things like school prayer, but I go even more radical and would agree with Michael Newdow that it should forbid other things like adding "under God" to the Pledge of Allegiance, "In God We Trust" on currency, or using prayer in an invocation for government proceedings.

However, under the same token, I think that if the government is going to offer benefits under the law, it cannot disfavor religious applicants over irreligious ones. Which means that (drum roll) I actually think in the case being argued at SCOTUS tomorrow that 4/5 mentioned, Espinoza should win. But since this post is long enough as is, I'll hold off explaining why in more detail until we digest this a bit.

I think we might end up disagreeing on this one. I'm going to read up on Sherbert before I say that more concretely, but my knee jerk reaction is Sherbert was fine and Smith was wrongly decided. I'll respond more later.

I figured you might, and that's fine. Another very broad point that I may work into a rebuttal I'll make is that how "religion" is defined is important. But I'll hold off on that until I hear from you and others.

I find your idea of it being a single "religion clause" interesting; it's kind of reminiscent of how you prefer not to view freedom of press as not enshrining any particular protection for "the press" that doesn't already exist for everybody through freedom of speech. I hope I'm remembering what you said on that about right.

I'll concede that free exercise exceptions can create some conflict with the establishment clause, but I tend to come down on the side of people having freedom to live how they want, so I'm fine with allowing exceptions for the Amish to not send their kids to high school and military exemptions and stuff like that. I admit that unemployment benefits (or government benefits more broadly) are a little bit trickier. There's a case that's slipping my mind right now where a Native American family was denied welfare benefits because as part of their religious/spiritual beliefs they refused to allow their daughter to use a social security number. The Court ruled against the family and basically said that they have the right to do that but social security requirements are religiously neutral. It's hard to argue with that. You mentioned defining 'religion' and that's probably a really important part of this. I'd prefer something broader like 'conscience,' which may help with establishment worries.

I'm totally thinking out loud here btw. I know that I'm concerned with protecting minority religious rights, but I'm also worried about these 'religious freedom' laws that are obviously designed to allow people to discriminate against others and hide behind a cloak of a religious justification.

Okay I'm rambling and need to stop.



Would you be more inclined to support an exemption based on the equal protection clause?

You are indeed correct, and it's on page 3. Very reminiscent indeed.

As a matter of law, I agree with you that I tend to come down on the side of people having freedom to live how they want, and law should be crafted to strive for that goal. What I strongly oppose is the idea that, on a constitutional level, certain people have more of a right to have that freedom just because of a belief in a supernatural power. That, to me, is a clear favoring of religion over irreligion that cuts against the First Amendment. And I'm not sure that broadening it to "conscience" makes things much better. What is and isn't conscientious objection? That's a dangerous path to go down.

I suppose I'd be more inclined, but I'm not sure how much more. Defining who are discrete and insular minorities is also very difficult and tricky. But I suppose that would be better saved for a future Equal Protection Clause topic, and in particular discussing footnote 4 of Carolene Products.

That makes sense and I understand where you're coming from. But what would your "religion clause" interpretation mean for things like the Amish homeschooling case, or Santeria animal sacrifice, conscience objector status to military service (which the Court has ruled doesn't have to be religious in nature, so this one may not be relevant), ordinances aimed at discouraging Jehovah's Witnesses preaching, etc. I support protections for each of these. It doesn't have to be free exercise protection if that's objectionable, but it seems like it would be very easy for majorities to craft laws that on their face are religiously neutral but obviously targeted at a specific minority religious group and I find that very problematic.

Do you oppose strict scrutiny as the standard of review for laws governing religious activities?

My simple response, and you may have gotten to this in your last sentence: if these are activities worthy of protecting for these groups, why aren't they worthy of protection for all groups?

I'd likely have to think about that more.

They are, but some of the activities are really only engaged in by a minority religious group and ordinances can be written in such a way that they are ostensibly religiously neutral but are in fact targeted at that group activity that a majority finds annoying or distasteful or odd, etc.

I understand your concern about there being essentially "extra" protection that certain groups as a result of being religious that secular groups don't receive. I think that's a valid concern. If you have an alternative legal method of protecting groups and activities like I mentioned above then I could be open to that, because I agree that in the process of making free exercise exceptions it can feel like its creating an establishment clause conflict. But if not I'm content to use the free exercise clause as the mechanism to prevent governments from infringing on citizens rights to practice the religion of their choice.

The kind of discrimination that you mentioned in your first paragraph can be targeted not only at minority religions but also other disadvantaged groups. The alternative legal method I'd favor instead is the Equal Protection Clause, but I'll withhold discussion on that until you want to move on to that topic.