Lyng and Bowen involved no regulation of religious behavior. Lee expressly
found a burden on free exercise (455 U.S. at 257); the case was decided on
compelling interest grounds. None of these cases have any relevance to the
burden issue in the ACA cases.
And by the way, I think that all three were rightly decided.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Monday, October 01, 2012 8:34 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Court Rejects Religious Liberty Challenges To ACA
Mandate--interpreting "substantial burden"
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
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