No, I think it's mistaken, and likewise with the more recent
steel wheels case, Mitchell County v. Zimmerman (Iowa Feb. 3, 2012),
http://scholar.google.com/scholar_case?case=9939422895334605795 . The
conclusion that a public employer's provision of medical exemptions should
likewise require the employer to recognize religious exemptions strikes me as
quite unsound. Consider some examples:
Many public employers would often give months-long leaves to people who are,
for instance, battling cancer; does it follow that they are constitutionally
obligated to give similar leaves to people who feel a religious obligation to
go on a months-long religious pilgrimage?
A public employer whose employee has a peanut allergy (or perhaps even a less
deadly allergy) might order its cafeteria not to cook with peanuts or peanut
oil; does it follow that it is constitutionally obligated to order its
cafeteria to cook only with kosher meats, and eschew pork or shrimp or mixed
meat and milk, in order to make the cafeteria usable by a kosher-keeping
employee?
A public university might excuse people with post-traumatic stress disorder
from certain assignments that might trigger a bad reaction - e.g., a rape
victim might be excused from an assignment that involves a rape case. Does it
follow that the university must excuse religious objectors from all assignments
that they feel to be religiously objectionable, e.g., because they involve what
the objector perceives as blasphemy?
The list could go on; but the basic point, it seems to me, remains - that we
sometimes cut slack for those who are sick, and sacrifice the interests of
taxpayers and of other employees in order to help the sick, doesn't mean that
we have to sacrifice such interests in order to help those who feel a religious
command that the taxpayers and other employees do not share. (Of course, some
people might support the result in Fraternal Order of Police v. Newark on the
grounds that the government interests in that case were negligible; I'm not
sure that's right, and I'm not sure that courts should make such decisions in
such cases - but, even if they do, that would be reason for adopting some sort
of weak intermediate scrutiny in such cases, not for adopting strict scrutiny.)
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Wednesday, February 15, 2012 11:32 AM
To: Law & Religion issues for Law Academics
Subject: RE: Laws with exceptions as triggering strict scrutiny -- and as
failing strict scrutiny because of their underinclusiveness?
Eugene,
I will try to respond to your hypos later today, but here is a non-hypothetical
question: Do you think Fraternal Order of Police v. Newark was correctly
decided?
Best,
Mark
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, February 15, 2012 9:44 AM
To: Law & Religion issues for Law Academics
Subject: RE: Laws with exceptions as triggering strict scrutiny -- and as
failing strict scrutiny because of their underinclusiveness?
Mark: A few hypotheticals: (1) Say that a state provides
that adequate provocation makes killing manslaughter rather than murder, and
that a particular set of behaviors - having sex with the defendant's spouse,
having just beaten a defendant (but in a situation where the peril is over and
no self-defense is allowed), and some other things - qualify as adequate
provocation. And say that this defense is indeed used in dozens of cases a
year. Someone kills someone for what he perceives is blasphemy, and argues
that his religious sense of provocation should be treated the same as the
provocation in the adultery, assault, etc. examples, so that he would be guilty
only of manslaughter rather than murder. He argues that this presumptively
entitles him to an exemption, and that it indeed the presumption can't be
rebutted under strict scrutiny because murder law is underinclusive.
(2) Someone feels a religious obligation not to testify
against his children or parents, or against coreligionists, or in other
contexts. He points to all the privileges recognized as defenses to the duty
to testify, and argues that these exceptions presumptively entitle him to an
exemption, and that indeed the presumption can't be rebutted under strict
scrutiny because the duty to testify is underinclusive.
(3) Someone feels a religious obligation not to hire women to
work together with men, or not to hire women with small children at home. He
points to the BFOQ exemption and to the exemption for small employers, both of
which would exclude many more employees from Title VII's protection than would
his proposed exemption. He argues that these exceptions presumptively entitle
him to an exemption, and that indeed the presumption can't be rebutted under
strict scrutiny because antidiscrimination law is underinclusive.
(4) Someone feels a religious obligation to spread the word of
God for free; that word happens to be in a book whose copyright is owned by
others. His claim isn't just to a right to do this in church, but to a right
to do this everywhere. He points to the many exceptions from copyright law,
from 17 USC 107 to 17 USC 122 (each of the sixteen sections contains at least
one exemption). He argues that these exceptions presumptively entitle him to
an exemption, and that indeed the presumption can't be rebutted under strict
scrutiny because copyright law is underinclusive.
Is it really the case that all these laws should be subject to
strict scrutiny - especially given that the underinclusiveness prong of strict
scrutiny might well make the laws invalid under such a test?
My thinking is that the answer is no. Most laws involve the
reconciliation of competing interests, including competing private interests
that the government is trying to protect; and I don't think that the fact that
someone has a religious motivation to do something constitutionally entitles
him to the best treatment available to others. That my rights as a copyright
owner are limited in some ways to serve rival concerns doesn't mean that
there's a constitutional obligation on the government's part to limit them
further in order to serve some people's view of what God demands - a view that
is not my view, and to which my rights should not, I think, bend. But whatever
one might think of this as a matter of first principles, it seems to me that
this "most favored nations" approach likely yields results, in cases such as
the ones I described above, that are rightly seen as improper.
Eugene
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu]<mailto:[mailto:religionlaw-boun...@lists.ucla.edu]>
On Behalf Of Scarberry, Mark
Sent: Wednesday, February 15, 2012 9:16 AM
To: Law & Religion issues for Law Academics
Subject: RE: Laws with exceptions as triggering strict scrutiny -- and as
failing strict scrutiny because of their underinclusiveness?
Paul rightly asks us to consider more than just formalism. History is
important, and I think the concern about freedom of the church goes back at
least to Pope Gregory (?) in the 11th (?) Century. Cf. Antigone.
I've suggested elsewhere that a historical approach to what constitutes free
exercise might help us understand it. But here is some more somewhat
formalistic analysis:
I have always understood the general applicability test to involve a kind of
most favored nations concern. Are other exceptions allowed to undercut the
basis purpose of a law to roughly the same degree that a religious exception
would undercut it? If so, the law is not of general applicability. For example,
if a prohibition law permitted sale and consumption of beer it would need to
permit sale and consumption of wine for communion or for Shabbat or Passover
dinners. If there is a copyright law exception for fair use of music in
schools, then an exception must be made for church services. Justice (then
Judge) Alito made this point in Fraternal Order of Police v. City of Newark (3d
Cir. 1989):
"Because the Department makes exemptions from its policy for secular reasons
and has not offered any substantial justification for refusing to provide
similar treatment for officers who are required to wear beards for religious
reasons, we conclude that the Department's policy violates the First Amendment."
I think that this is a kind of mid-level under-inclusiveness requirement, but
one that is used not in applying a level of scrutiny but in deciding what level
of scrutiny to apply. From Lukumi Babalu Aye v. City of Hialeah:
"The ordinances are underinclusive for those ends. They fail to prohibit
nonreligious conduct that endangers these interests in a similar or greater
degree than Santeria sacrifice does. The underinclusion is substantial, not
inconsequential."
Thus the prohibition on animal sacrifice was not generally applicable. I
realize that there is other language in the case that focuses on the targeting
of religious conduct, on the point that practically the only conduct prohibited
was religious. Yet I think the quoted principle captures the basic meaning of
"generally applicable."
Of course all of these concepts are somewhat manipulable. What is the purpose
of laws against murder? To prevent killing? To prevent unjustified killing? To
protect the innocent? Under some of these formulations a defense of
self-defense could make a murder law not generally applicable in a formalistic
sense. But of course our history will prevent murder laws from being
invalidated with respect to human sacrifice, even of a volunteer. You might say
that background legal principles frame the analysis. We value innocent life.
Thus historically we have permitted private self-defense against attackers, but
we do not otherwise allow the private intentional killing of a human being
except where there is not enough time to get the govt involved. If unenumerated
but firmly historically rooted rights (e.g, some parental rights) are
constitutionally protected under Due Process, as I think even Justice Scalia
accepts, then it makes some sense to consult history as we try to understand a
right specifically enumerated in the First Amendment. Almost all legal concepts
are manipulable, but that does not mean they are useless. And even laws not of
general applicability will be enforceable against religious conduct if the govt
interest is strong enough, which gives us an out from a too-formalistic
application of the requirement.
I suppose a historical approach might have led to a different result in Lukumi.
That may cut against it. Animal sacrifice has been seen for quite a long time
to be foreign (literally) to the exercise of religion in the US. (A cousin told
me of an animal sacrifice done next to her condo building by some
middle-eastern immigrants to cleanse the building of the effects of a suicide.
The immigrants were neither Jewish nor mainstream Muslim, as I understand it.)
Yet we do eat animals in celebrations that have religious or cultural
significance (e.g., Thanksgiving turkey). We even grant mercy to such animals
at times. Consider presidential pardons of Thanksgiving turkeys. And there is a
need to adjust historical analysis to protect religions that are new to our
society. Perhaps the general applicability requirement would help us do the
needed historical adjustment.
Best,
Mark
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
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