Thread by @tznkai

I still stand alone thinking Yoder was fine, actually.

https://twitter.com/gabrielmalor/status/1364309352300044296

I think this was the problem people had with the Yoder test, yes. Government officials and lawmakers would be expected to be careful about their policy making and then a judge could say they weren't good enough based not totally clear criteria.

https://twitter.com/csilverandgold/status/1364332590128267264?s=20

Of course just because you take away discretion from a judge doesn't mean you don't have government agents using their discretion all the time anyway, which is why Church of Lukumi Babalu Aye v. Hialeah came about.

The City of Hialeah outlawed all animal sacrifices, while declaring certain things not animal sacrifices, because they were mad about Santeria. After Smith came down, lower courts, as @SlacktivistFred has pointed out, took Scalia at his word. patheos.com/blogs/slacktiv…

Of course, Professor Lupu would point out, it's more complicated than that. Yoder hadn't produced a win for religious claimants in a while. But I still think having a rule protecting sincere religion is valuable, even if only honored in the breach.

Especially given our alternatives are "protected only when the state is comically transparent in their invidious purpose" (Halieah) or "Conservative Christian business owners must be protected" (Hobby Lobby)

Religious liberty matters, even when law is transparently motivated to enable anti-gay prejudice. E.g., with housing we need to protect the ability of tenants/owners to host a religious group (life group) or religious group home (from convents to retirement communities).

Also there's a nontrivial history of some bullshit where the majority picks on the minority through zoning laws. It's important to give mosques a tool to fight back with, for example.

Rescuing this good comment from an orphaned branch.

https://twitter.com/macademician/status/1364342798414143497?s=20