Goehring

The plaintiffs, students at the University of California at Davis (“the University”), appeal the district court’s grant of summary judgment in favor of the University with respect to their free exercise of religion claim. The plaintiffs allege that the University’s mandatory student registration fee violates their right to free exercise of religion because the fee is used, in part, to subsidize the University’s health insurance program, which covers abortion services.

On appeal the students challenge: (1) the district court’s grant of summary judgment to the University; (2) the district court’s denial of the students’ request for attorney’s fees pursuant to 42 U.S.C. § 1988 ; (3) the district court’s denial of the students’ request for discovery and an evidentiary hearing on the issue of attorney’s fees; and (4) the district court’s denial of the students’ request for attorney’s fees pursuant to 28 U.S.C. § 1927 .

I. Procedural Background

On June 16, 1992, Gregory Goehring filed suit in district court against the Regents of the University of California and various officers of the University. On December 4, 1992, Goehring filed an amended complaint, adding five plaintiffs, and…

concurring:

I concur in Judge Ferguson’s opinion, but write separately to express some concerns about the reasoning he has been required to employ.

In my opinion, the Supreme Court began to light the way to a proper construction of the First Amendment’s clauses on religion when it decided Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872 , 110 S.Ct. 1595 , 108 L.Ed.2d 876 (1990). I do not agree with this court’s crabbed view of that case, which suggests that it is limited to criminal matters. See American Friends Serv. Comm. Corp. v. Thornburgh, 961 F.2d 1405 , 1407 (9th Cir.1991); NLRB v. Hanna Boys Ctr., 940 F.2d 1295, 1305 (9th Cir.1991), cert. denied, 504 U.S. 985 , 112 S.Ct. 2965 , 119 L.Ed.2d 686 (1992). That simply overlooks the general principles established in Smith , which point to the dangers of attempting to analyze the validity of neutral laws from the vantage point of some individual’s religious beliefs. See 494 U.S. at 882-89 , 110 S.Ct. at 1602-06 . In other words, in Smith the Supreme Court reminded us that laws of general application do not run afoul of the religion clauses; rather, those clauses assume and require an evenhanded neutrality both…