Whoops, sorry for the jarring shift from the second person to the third person in the third paragraph ....
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, February 14, 2012 9:36 PM To: Law & Religion issues for Law Academics Subject: RE: FW: RFRA substantial burden analysis Marty: Doesn't this all depend on what you mean by "facially plausible" in "whether the objector has at least articulated a facially plausible explanation of why being compelled to engage in the conduct in question would impose a materially different and more severe burden on religious exercise than the conduct in which the person or organization regularly engages without any notion that it results in 'proximate material cooperation with evil'"? I would think that it's obviously "facially plausible" to say that, once an employee has gotten a paycheck, the church is no longer responsible for what the employee does with it, but when a church is buying an insurance policy, it is responsible for the items that the insurance policy covers. Indeed, this seems to be much like the line drawn by four Justices in Zelman: Once the government gives someone money (a salary, welfare payments, unemployment compensation, etc.), the government is not responsible for the recipient's use of the money for religious purposes, but when the government is handing out education vouchers, it is responsible. And if you object that the program in Zelman mostly involved religious beneficiaries (of course, a highly contested question that turns on what denominator you use), consider the Washington Supreme Court's decision in Witters - or for that matter, the Washington state rule in Locke v. Davey - that applied the same distinction to a program whose beneficiaries were indubitably overwhelmingly secular. Naturally, one involves felt complicity in sin and the other felt subsidization of religious doctrine, but the underlying point for purposes of the "proximate material cooperation" line is the same. But it sounds like Marty requires more than just this level of "facially plausible." And if we get past that level (or even to this level), then we're getting into the very sort of inquiry into the reasonableness of religious beliefs that the Court has rightly rejected. Say that an orthodox Jew insists that he needs a diet that doesn't mix chicken and milk. Will we start demanding a facially plausible explanation - in the sense of one that persuades us of its reasonableness - for why the bar on seething a kid in its other milk should extend to chicken but not to fish? Or how about an orthodox Jew who does some things on the Sabbath but not others. Will we start demanding a facially plausible explanation of why he can enter this kind of elevator but not that kind of elevator? Religious rules are often based on distinctions that are "facially implausible" to outsiders. It seems to me that the Court's view has consistently been that requiring someone to do something that he sincerely feels is religiously forbidden is a substantial burden, with no requirement of proof of plausibility - see, e.g., Thomas. And this strikes me as quite right both in general, and in this case in particular. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, February 14, 2012 9:12 PM To: Law & Religion issues for Law Academics Subject: Re: FW: RFRA substantial burden analysis I don't think anyone on this list would advocate "a full-fledged trial on Catholic moral theology." I certainly wouldn't. What I have been suggesting, instead, is that courts might look to the objector's own conduct to see if it is reflective of a religious commitment that would be substantially burdened if an exemption were denied. Moreover, the government might ask whether the objector has at least articulated a facially plausible explanation of why being compelled to engage in the conduct in question would impose a materially different and more severe burden on religious exercise than the conduct in which the person or organization regularly engages without any notion that it results in "proximate material cooperation with evil." The objector doesn't have to persuade the court (or in this case HHS) of the correctness of its religious view and of the viability of such distinctions. But it can't really be enough (can it?) for the court to accept Eugene's view that it must assume a "substantial burden" based on the objector's mere say-so, in a case where its dollars or resources are used, down the line and pursuant to intervening "genuine and independent private choice" (Zelman, Agostini), for activity that the employer finds morally objectionable, and where the employer regularly allows its resources to be used for those same foreseeable ends in other contexts. Quite honestly, my principal objective here is not to resolve the RFRA question, but instead to ask, at an earlier point in the process, why the state should grant the requested permissive accommodation in the first instance and, perhaps more importantly, to prompt thoughtful people within the Catholic tradition to give further consideration to whether this would, in fact, be a case involving proximate material cooperation with evil under Catholic doctrines, in a way that seemingly analogous uses of employer resources would not be -- and, if they conclude that it is, to explain to the state and to the public why the logic for granting the exemption here would not also counsel exemptions whenever employers have moral objections to requirements that their resources be used in certain ways, and whenever taxpayers object to the use of their money by the state. These are very hard questions. And what I am suggesting here undoubtedly would raise its own quite perplexing problems. But I can't believe the only workable answer to the difficulty is for the state always to accept the objectors' claims of substantial burden at face value, no matter how implausible such claims might appear in light of the objector's own conduct. After all, the objector is asking for an exemption that would harm third parties. The least the state could do, I would think, is presumptively to insist that the objector itself have demonstrated a willingness to bear that same level of cost, at a minimum, in the service of its religious commitment.
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