Professor Levinson approaches the task of identifying compelling state interests by examining Employment Division v. Smith, the Oregon Peyote Case, and specifically Justice O'Connor's concurring opinion in the case. Although Justice O'Connor endorses the strict scrutiny test for determining the constitutionality of statutes that impose burdens on religious practices, Professor Levinson argues that because there is nothing in the record to indicate that the Oregon Legislature examined the issue whether a ban on all uses of peyote was necessary for Oregon to fight the war on drugs, Justice O'Connor was wrong to concur in the judgment that the statute passed constitutional muster. From there, he considers the role of the Oregon Attorney General in judicial review of the statute, and argues that in situations where a legislature does not appear to have engaged in the means-ends analysis that strict scrutiny requires, attorneys general should not be compelled to defend its products. Instead, the idea that an attorney general's ultimate "client" is the public leads Professor Levinson to suggest that the public lawyer ought to be held to a higher professional standard than the private attorney, and in meeting this standard should have an obligation to undertake the same strict-scrutiny analysis before defending the constitutionality of a statute as a Supreme Court Justice would in determining the statute's constitutionality.
Identifying the Compelling State Interest: On "Due Process of Lawmaking" and the Professional Responsibility of the Public Lawyer,
45 Hastings L.J. 1035
Available at: https://repository.uchastings.edu/hastings_law_journal/vol45/iss4/11