Lawyerly law stuff that's interesting


I honestly don’t know what you are arguing at this point.

Do you think that the government can make laws that prevent you from exercising your religion?


Yes, if the laws are “generally applicable”.

It’s pretty plainly stated here:

The right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).

I gave a few examples, and Scalia gave a bunch more.


Ok, just checking to make sure that’s what you believed.


Do you believe the government can prohibit a Sikh from carrying a big ceremonial knife onto an airplane?


The legal issue that comes up with this, is the notion of “hybrid rights”.

Employment division v. Smith did not rule on these, and it was the key differentiator between previous cases involving things like Amish people not being forced to send their children to school on religious grounds.

So, i don’t think the Sikh could carry the knife, under employment division v. Smith, since it isn’t really a violation of some other right.

But earlier precedents that were considered in employment division had held that the free exercise clause did in fact sometimes protect religious practices that violated laws.


The notion of hybrid rights is that freedom of religious expression combined with some other right might be stronger than either alone.

As your article points out, the SCOTUS never explained how this is supposed to work in practice. The Second, Third, and Sixth Circuit Courts have decided that the notion of hybrid rights is unworkable and not binding on them. “Zero plus zero is zero,” as they say. The other Circuit Courts have tried to muddle on. But it is not something you would want to hang your hat on right now.


Yes, it was mainly just a way to make that ruling without overturning the prior ones.




The court’s reasoning seems sound to me:

Courts throw out laws that are unconstitutional.

If a law is stupid, wasteful, or compliance is impossible then the courts do not have the authority to throw it out. You’ll have to complain to the legislature.

However, courts may decline to punish someone for breaking the law, if that person can prove compliance was impossible. This is done on a case by case basis. And the law stays on the books, because compliance won’t necessarily be impossible the next time it’s broken.


This will become super relevant when states inevitably start writing laws that require big data companies like Apple and Google to give law enforcement agencies the keys to get into phones and accounts of their customers, even if they’re encrypted.

Apple’s argument is going to be that it is impossible to comply.


Was either here or the pot thread, but this seemed more appropriate.



There should be an extra penalty for dumb laws that are clearly unconstitutional. I imagine there’s already case law about protestors wearing masks…


There is and generally it’s been upheld from what I gather.

Of course those laws were used against the Klan.

This, naturally, is vague as shit and unlikely to survive.

I suspect it will fail Bennett’s test down in the lower right someplace, but I’m not a First Amendment lawyer.



TLDR: Elon’s fanboys doxxed a dude that was critical of Tesla, Elon threatened to sue him and his employer, and dude stopped doing analysis of them.


Doesn’t want to dig for a decades old thread, so I’ll leave this much delayed response to Kelo here:




That reminds me of the Don’t talk to cops video (and the associated part 2 where a cop is pretty much like “yep”.