Religious groups and their supporters have been trying to water down "substantial" for years. The Alabama rfra doesn't include "substantial" and neither did the failed North Dakota or Colorado initiatives. One of the reasons the latter failed is overreaching, though it is also attributable to the fact that the Rutherford Institute and others lobbying for rfras have met their match in a number of opposing groups.
The court in the ACA case did little more than apply existing law on the interpretation of "substantial." Those arguing the case was wrongly decided on this issue are arguing for a new standard. That is contrary to RFRA's (and RLUIPA's) legislative history, which indicate "substantial burden" was to be interpreted according to existing precedents (as of 1993 and 2000)..... In other words, Lyng, Bowen, and Lee are the governing interpretations for RFRA. Subjective views of burden are not part of the doctrine. It would take the Supreme Court to overturn these decisions to grant a win to the religiously affiliated institutions. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -----Original Message----- From: Steven Jamar <stevenja...@gmail.com> Cc: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Sent: Sun, Sep 30, 2012 10:16 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate On Sep 30, 2012, at 9:49 PM, Douglas Laycock wrote: > Steve's second point -- the difference between historic exclusion of > Catholics as such and contemporary exclusion of those who adhere too strictly to certain Catholic teachings -- is just Smith's holding about generally applicable laws. The whole point of RFRA was to create statutory protection not restricted to that holding. Agreed. But that doesn't make the history of status-based exclusion controlling for what is and is not a substantial burden, or even particularly relevant. They are different types of exclusion. There are reasons to protect pure-belief-based actions even in the commercial secular marketplace, but that history is not one of them. > The ACA and the contraceptive mandate also have exceptions that cover rens of millions of people, so it is far from clear that this is a neutral and generally applicable law. The no-burden holding also saves the court from having to address that issue. I am not overly fond of a number of substantial burden results. But the test is substantial burden, not merely burden, and the term "substantial" should mean something. I think it should mean something quite substantial and be something that really effectively prohibits the exercise of religion or really makes it so hard to practice one's beliefs that one has a hard time practicing them. I understand others think it should be subjective and controlled by the adherent and that we should take his or her word for the substantiality of the effect. You may believe that OSHA is the work of the devil. But that doesn't relieve you from compliance if you choose to engage in the sort of commerce that OSHA regulates. No one is making you do that sort of work. You have alternatives. Do we really want to say the subjective burden as felt by the adherent gets past the first hurdle and then have courts start expanding "compelling state interest" to uphold the myriad regulations on commercial establishments? That seems to me to be a greater mischief. Perhaps RFRA should be revisited to address the back-end standard to make the balancing more like EP intermediate scrutiny. Or to consider the substantiality of the burden, the importance of the state's interest, the effect on third parties (e.g. employees in an employer setting), and the effect of ruling one way or the other on all three -- what options are available for the religious adherent employer; what costs are there to society and the government in interests of equality, equity, administration of the laws; what options are there to the employee. But that opens quite another can of worms and gives huge discretionary power to the courts. Is that really what we want here? Or do we really want the unit veto for any and all government regulations short of human sacrifice and child abuse as compelling interests? Are we going to revisit the social security cases and now say they don't need to pay the tax? I think the judge got it right here and that the alternatives are not necessarily good for free exercise in the bigger picture. Steve > > On Sun, 30 Sep 2012 21:32:10 -0400 > Steven Jamar <stevenja...@gmail.com> wrote: >> I was quite clearly talking about religious employers in secular commerce. The religious institutions engaging in secular/religious endeavors like religious schools and hospitals are different from someone making and selling widgets. >> >> There is also quite a difference between pure status exclusion of the type Doug refers to historically and self-exclusion because of choice of religious beliefs conflicting with otherwise neutral, general laws. The burdens are not comparable. >> >> The burden exists, but it is not legally substantial, even if it the effect of it is to exclude someone from a particular sort of work as an employer. >> >> Steve >> >> >> On Sep 30, 2012, at 8:33 PM, Douglas Laycock wrote: >> >>> Given the history of religious exclusion from occupations in England and Ireland, it ignores the history of the Religion Clauses to say that de facto occupational exclusions are not even a burden. Maybe justified by a compelling interest, maybe neutral and generally applicable under Smith, but undoubtedly a burden on religion with a history of deliberate use as such. >>> >>> I don't think Steven was talking about the religious institutions. But it would be obviously preposterous to say that churches can close their schools and hospitals and missions to the poor, and experience no burden on their religon. >>> >>> >>> >>> On Sun, 30 Sep 2012 18:10:06 -0400 >>> Steven Jamar <stevenja...@gmail.com> wrote: >>>> As I noted in an article some long time ago, there are (at least) 3 interests at stake in employment cases -- society's interest in non-discrimination and availability of employment for people; the employer's interest in practicing his or her faith in the workplace; and the employee's interest in a job, non-discrimination on the basis of religion, and getting the state-mandated benefits regardless of who his or her employer is. >>>> >>>> If we had a Smith standard in place rather than RFRA, then I think we'd >>>> see better balancing going on perhaps, though it would be under title VII. I think Smith goes too far in not balancing anything and giving the government nearly carte blanche -- hence the RFRA response. But who decides and on what basis does one decide when the threshold requirement of substantial burden is met? We now leave it to the judges and they do not just accept the word of the claimant -- polluting sacred mountains with sewage comes to mind as something adherents thought a substantial burden, but the court disagreed. >>>> >>>> Here, the employer is not stopped from doing anything. He is required to provide a benefit same as anyone else who enters the marketplace as an employer. The only burden comes from the employers own choice to (a) practice his beliefs in all aspects of his life and (b) to engage in a business that subjects him or her to offensive (to him or her) regulation. This is thus, for the adherent, and entirely avoidable conflict and burden. Unless one is willing to say a religious adherent needs to, or must, or is required to run a business that is subject to such regulation. >>>> >>>> Substantial burden is a blunt instrument. But it cannot be wielded the other way to give rise to unit vetoes in secular commerce. >>>> >>>> Steve >>>> >>>> >>>> -- >>>> Prof. Steven D. Jamar vox: 202-806-8017 >>>> Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org >>>> Howard University School of Law fax: 202-806-8567 >>>> http://iipsj.com/SDJ/ >>>> >>>> “It’s all about you, using your own mind, without any method or schema, to restore order from chaos. And once you have, you can sit back and say, ‘Hey, the rest of my life may be a disaster, but at least I have a solution.’ ” >>>> Marcel Danesi, in an interview about his book, “The Puzzle Instinct: The Meaning of Puzzles in Human Life.” >>>> >>> >>> Douglas Laycock >>> Robert E. Scott Distinguished Professor of Law >>> University of Virginia Law School >>> 580 Massie Road >>> Charlottesville, VA 22903 >>> 434-243-8546 >>> _______________________________________________ >>> To post, send message to Religionlaw@lists.ucla.edu >>> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>> >>> Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. >> >> >> -- >> Prof. Steven D. Jamar vox: 202-806-8017 >> Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org >> Howard University School of Law fax: 202-806-8567 >> http://iipsj.com/SDJ/ >> >> Nothing worth doing is completed in our lifetime, >> Therefore, we are saved by hope. >> Nothing true or beautiful or good makes complete sense in any immediate context of history; >> Therefore, we are saved by faith. >> Nothing we do, however virtuous, can be accomplished alone. >> Therefore, we are saved by love. >> No virtuous act is quite as virtuous from the standpoint of our friend or >> foe as from our own; >> Therefore, we are saved by the final form of love which is forgiveness. >> >> Reinhold Neibuhr >> >> >> >> >> _______________________________________________ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. > > Douglas Laycock > Robert E. Scott Distinguished Professor of Law > University of Virginia Law School > 580 Massie Road > Charlottesville, VA 22903 > 434-243-8546 -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Hope has two beautiful daughters. Their names are anger and courage; anger at the way things are, and courage to see that they do not remain the way they are. -- Augustine of Hippo. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
