Religious Expression in the Balance: A Response to Murad Hussain’s Defending the Faithful
Religious Expression in the Balance: A Response to Murad Hussain’s Defending the Faithful
Bernadette Meyler, 117 Yale L.J. Pocket Part 186 (2008)
In attempting to find redress for those plaintiffs whom the government, in furtherance of its counterterrorism policies, has subjected to burdens upon religious activities that express their Muslim identity, Hussain deftly circumnavigates the shoals of the Supreme Court’s decision in Employment Division v. Smith. Justice Scalia, writing for the majority in Smith, contended that the Free Exercise Clause of the First Amendment does not require courts to grant exemptions from neutral laws of general applicability simply because these laws burden religious practice. Explaining how this position could be reconciled with the Court’s precedents, Justice Scalia observed that the Court had required such exemptions only when another right– in addition to free exercise–was implicated. It is, Hussain argues, through these kinds of “hybrid claims”–and, in particular, claims combining free exercise with free speech–that Muslim plaintiffs may most effectively articulate the interests that should persuade the government to refrain from imposing restrictions upon their religiously motivated activities. This strategy’s efficacy may, however, inhere less in its ability to affect outcomes immediately than in its capacity to encourage shifts in judicial outlook over the longer term.