Title

Why Guru Nanak Is Another Nail in the Coffin of West Coast Hotel v. Parrish

Authors

John H. Ryskamp

Abstract

In Guru Nanak v. Sutter, the Ninth Circuit upheld RLUIPA by accepting its conflation of "individualized assessments" and "substantial burden." Although RLUIPA involved a misreading of Oregon v. Smith, it was a misreading the Ninth Circuit adopted. The question is, why did Sutter counsel allow the misreading of Smith, especially since Smith lost? It is because, in general, the American bar has failed to see that there has been a substantial corrosion of the scrutiny regime established by West Coast Hotel v. Parrish. They are in denial: they can't believe that the scrutiny regime could ever fall. And yet, the Court in Lawrence v. Texas -- which established an individually enforceable right to liberty -- not only implicitly overruled the West Coast rationale that liberty needed to be controlled -- but also, it set up a test which is not even part of the scrutiny regime. Guru Nanak affirms the undermining of the scrutiny regime, and RLUIPA will probably be upheld if Guru Nanak is appealed. Part of the reason it will be upheld, is that those opposing RLUIPA do not know how to argue in our new Constitutional epoch, an epoch in which West Coast Hotel has been left far behind. Together, Guru Nanak and Lawrence argue a revisiting of all health and welfare regulation. The bar should take note.

Disciplines

Constitutional Law

Date of this Version

August 2006