Alan raises a fair point with his hypothetical law giving everyone the right to take Sunday off if s/he wants. Facial neutrality might well not be enough in that case. But the major problem there, it seems to me, is the blatant distinction in fact between different religious faiths with Sunday as opposed to non-Sunday sabbaths. I think that it makes more sense to address that concern directly, rather than have it trigger a separate inquiry (like the one in Thornton) about the relative burdens that it imposes on others versus burdens it removes from the accommodated workers. The latter inquiry is the one that, to me, seems unwarranted and not quite on point.
One could say, of course, that the accommodation of abortion objections likewise accommodates certain faiths -- those opposed to abortion -- and not others -- those who object to participating in other medical procedures. That raises the difficult question, which we've discussed on list before, of when an statute-specific accommodation becomes denominational discrimination. I might concede Alan's point that you need to look behind the face of the accommodation somewhat to see if there's just pure religious favoritism going on. Gillette v. U.S., which upheld excluding selective COs from the draft exemption statute, suggested that there needs to be a "neutral, secular reason" for the limited scope of the exemption. But I don't think that such review of the scope of an exemption -- review of why it wasn't broader or more general in its terms -- should be overly strict. There are often good practical reasons for addressing only one issue of conscience at a time. It may be the only issue of conscience raised by a particular statute. And often it's easier for the legislature to set forth a clear rule for one context than for many contexts: trying to address a whole range of contexts at once tends to force the accommodation into the form of a generalized balancing test that, even if not impermissible, is not always ideal. I would protect against denominational discrimination in statutory exemptions not by doing away with such exemptions, but by backing them up with free exercise exemptions, which by their nature will be oriented toward minority faiths. If the purpose of Alan's hypothetical Thornton-like law is to accommodate people's conscientious desires (religious and secular) for days off, I can't see any neutral, secular reason for limiting it to Sundays. It's a grossly underinclusive accommodation-of-conscience statute. The abortion accommodation, on the other hand, could rest on a judgment that abortion is a particularly deeply felt issue (a judgment that the newspapers confirm every day), or is different because it touches on matters concerning what is a life worthy of respect, etc. All of these seem much more defensible reasons for accommodating that particular problem of conscience than are any of the reasons for giving only Sundays off. (Again, if the purpose of the Thornton-like law is to accommodate conscience, I can't see any plausible reason for limiting it to Sundays only. The only possible reason to favor Sundays is to encourage a single day of rest -- a sort of soft version of the argument for blue laws that succeeded in McGowan. But in that case its purpose is not accommodating conscience.) Tom Berg ******************* Thomas C. Berg University of St. Thomas School of Law Mail # MSL 400 1000 La Salle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 [EMAIL PROTECTED] ************************ -----Original Message----- From: Alan Brownstein [mailto:[EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]> ] Sent: Sunday, May 16, 2004 4:22 PM To: Berg, Thomas C.; Law & Religion issues for Law Academics Subject: RE: RE: Medical workers who don't want to participate in abortion s Tom and Eugene's thoughtful comments are pretty persuasive, but I'm not entirely convinced that we can ignore what Tom calls the focus on relative benefits whenever a law facially applies to both religious and nonreligious groups. I appreciate the importance of facial neutrality or generality, but why should that completely outweigh the burden on third parties, for example,or whether the law has the effect of disproportionately benefitting certain religions and not others. Or to put it another way, should we entirely ignore the purpose of the law, and whether the burdens created by the law disproportionately impact nonreligious individuals or members of minority faiths. A lot depends on what is considered a general and neutral law. Don't both the beneficiaries of an accommodation and those who bear the costs of the accommodation need to be taken into account? Does a law tracking Thornton that requires employers to accommodate everyone who wants Sunday off violate the Establishment Clause? Do we resolve concerns about religious institutions discriminating on the basis of religion in hiring staff to operate publicly funded programs by allowing all ideologically oriented organizations receiving public funds to discriminate on the basis of religion in hiring? I don't claim to have the answers to these questions. I'm just not sure that generality of beneficiaries is a sufficient principle to adequately further Establishment Clause values. Alan Brownstein UC Davis > I agree with Eugene that you probably need an additional step in the > argument to fit the abortion conscience exemption into the Texas Monthly > test -- namely "that when a law treats religious and nonreligious people and > institutions equally, courts shouldn't guess what fraction of the benefits > flow to the religious." > > It seems to me, though, that this additional step is not just Eugene's own > argument, but is one that the Court has explicitly adopted in Mueller v. > Allen and in Zelman v. Simmons-Harris. In both those decisions, the Court > explicitly found it irrelevant that a very large percentage of benefits of a > neutral program based on individual choices flowed to religious education, > because such statistics cannot produce a judicially administrable test and > because the program did not skew the individuals' choices toward religion. > And both of those decisions involved financial subsidies in the Court's view > (vouchers in Zelman and tax deductions in Mueller -- the latter might not be > best characterized as financial subsidies, but certainly the former are). > If the Court doesn't look at the percentage of benefits flowing to religion > under a religion-neutral financial subsidy program, then as I argued before, > a fortiori it shouldn't (and wouldn't) do so in the case of a > religion-neutral exemption/accommodation for individual conscientious > conduct, which lies even further away from the core theoretical and > historical concerns of the Establishment Clause (and that is true even if > it's an exemption from sanctions by private employers.) > > For this reason, I don't think that in order to immunize accommodations of > conscience that are neutral between religious and secular conduct from > Establishment Clause challenge, one needs to buy into Eugene's principle > that equal treatment of the religious and secular *always* satisfies the > Establishment Clause. In other contexts, such as direct aid, the delegation > of government power, or government speech in public schools, the > Establishment Clause case law still seems to say that religious > beneficiaries and ideas must be treated differently from secular ones. But > again, one can make a quite convincing argument -- even if it is not > entirely open and shut -- that those situations are much closer to the > theoretical and historical core of the Establishment Clause than are > situations where the government acts simply so that individuals can continue > to pursue their religious exercise without restriction (governmental or > private). > > So I'd still say that Eugene's question about religious-and-secular > accommodations is not really much of an open question under current judicial > doctrine. Others on list, of course, might advance normative theories under > which Thornton could apply even to a law that accommodated secular conduct > as well. But I don't see much in the case law to support them. And I also > don't think that such a theory would stand up normatively either, because > accommodations to allow individual religious exercise to proceed unmolested > are far from the core concerns of the Establishment Clause. It would be a > double stretch of the Establishment Clause to apply it to a law that not > only seeks simply to ensure that individual religious conduct is left > unrestricted, but that does so by giving the same protection to the > equivalent secular conscientious conduct. > > Tom Berg > University of St. Thomas School of Law, Minnesota > > > _____ > > From: Volokh, Eugene [mailto:[EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]> ] > Sent: Sun 5/16/2004 2:00 PM > To: Law & Religion issues for Law Academics > Subject: RE: RE: Medical workers who don't want to participate in abortions > > > > I like Tom's argument, but I don't think it's quite as open and shut as the > post below suggests. The property tax exemptions for nonprofits really did > end up flowing to "a large number of nonreligious groups." The right not to > be dismissed or disciplined for not participating in abortions will > overwhelming benefit, I suspect, religious objectors; there certainly are > some secular conscientious objectors to abortion (e.g., Nat Hentoff, to name > a public one), but I'd guess that these are a rather small subset of all > beneficiaries of the law. > > > This having been said, I agree that this *should* be the rule, because I > think that when a law treats religious and nonreligious people and > institutions equally, courts shouldn't guess what fraction of the benefits > flow to the religious. That's my view as to school choice programs, and > it's my view as to accommodations of religious and conscientious objectors. > (I don't view the Free Exercise Clause as making a difference here -- the > abortion conscientious objector laws protect even against firings by private > hospitals, where the Free Exercise Clause isn't involved even under the > Sherbert/Yoder framework; and if we're talking about broader "free exercise > values" that are applicable even to private action, then it seems to me > equally legitimate to invoke such values as a support for subsidies for > private education, which likewise help religious parents exercise their > religion.) As I mentioned in my original post, I think the equal treatment > of religious and secular objectors provided by the abortion conscientious > objector laws should indeed distinguish them from the law in Thornton (even > though the Thornton opinion mentioned the religious preference only in > passing). But I would have thought that this would be controversial, > because many people do not take my Establishment-as-equal-treatment > position. > > > So let me ask: Does anyone on the list think that the Thornton doctrine is > *not* limited to government-mandated exemptions that are for religious > objectors only, and that it might apply to at least some such exemptions > that facially cover nonreligious conscientious objectors, too? If the > answer is no, then there need be no further discussion. But if the answer > is yes, then I wonder how the abortion conscientious objector laws would > fare under that view of Thornton. > > > Eugene > > Tom Berg writes: > > As far as caselaw doctrine goes, isn't Eugene's question answered by the > Brennan plurality opinion in Texas Monthly (only a plurality, but also the > opinion in the case most restrictive of accommodations)? The Court struck > down the exemption from sales taxes for religious publications. The > plurality first distinguished the property tax exemptions upheld in Walz, > among other programs, on the ground that "the benefits derived by religious > organizations flowed to a large number of nonreligious groups as well. > Indeed, were those benefits confined to religious organizations, they could > not have appeared other than as state sponsorship of religion." 489 U.S. at > 11 (citing Thornton v. Caldor, among others). > > > The plurality then proceeds to articulate a test for the > constitutionality of such exemptions: "Insofar as th[e] subsidy [of a tax > exemption] is conferred upon a wide array of nonsectarian groups as well as > religious organizations in pursuit of some legitimate secular end, the fact > that religious groups benefit incidentally does not deprive the subsidy of > the secular purpose and primary effect mandated by the Establishment Clause. > However, when government directs a subsidy exclusively to religious > organizations that is not required by the Free Exercise Clause and that > either burdens nonbeneficiaries markedly or cannot reasonably be seen as > removing a significant state-imposed deterrent to the free exercise of > religion, it [violates the Establishment Clause]." Id. at 14-15. > > > The problem with the exemption in Thornton, as Eugene notes, was > that it "burden[ed] nonbeneficiaries markedly" through its absolute > weighting of the balance in favor of the religious employee over the > employer and over the secular employees who would have to replace him on his > Sabbath. The passage from Texas Monthly seems to make clear that this > question of "burden[ing] nonbeneficiaries markedly" kicks in only when the > exemption is religion-specific. When, as is almost certainly true in the > abortion conscience case, the exemption "flow[s] to a large number of > nonreligious [persons] as well," the focus on relative burdens is simply not > triggered. The exemption, as Sandy observed, is viewed more as the kind of > "secular" adjustment of private economic relations that the legislature does > all the time, and therefore subject to minimal or no review. > > > I think this analysis applies a fortiori to the abortion case > because (1) the Brennan plurality is the Texas Monthly opinion most > restrictive of legislative accommodations and (2) the opinion treats tax > exemptions as a financial subsidy, which is a category of government action > that strongly implicates the Establishment Clause, and a category that is > much harder to apply to an exemption from performing abortions. > > > On the latter point, all the Establishment Clause decisions that > strike down applications of a facially neutral statute that incidentally > helps religion involve either (a) direct financial aid to religion (Lemon), > (b) affirmative, intentional promotion of religion in the public schools > (Wallace v. Jaffree), or (c) delegation of government power to a religious > group (Larkin, Kiryas Joel). Simple exemption of religious conduct from > restrictive regulation is quite different from these cases, largely because > of the implications of the Free Exercise Clause. I would say that it is so > different that religion-specific exemptions should be approved and in many > cases should be mandated. That is not the Court's position (Smith), but the > Court clearly does recognize that exemption is different from affirmative > promotion (see Presiding Bishop v. Amos). The different status of an > exemption surely is enough to mean that exempting religion along with > secular forms of conscience does not trigger the Establishment Clause -- > that is, it does not trigger the inquiry of Thornton and Texas Monthly about > the relative degree of burden that the exemption imposes on others. > > > Tom Berg > University of St. Thomas School of Law, Minnesota > > > _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
