I agree with these points. I would also add that there are many ambiguities and uncertainties in a test like that announced in Employment Division v. Smith, both because of the express carve-outs within Smith itself (whatever their motivation) and because of implicit questions about legislative intention that are features (not bugs) of many other laws. The ambiguities in putatively clear, bright line rules also at times have the effect of making one's perception of the rule-like quality of the rule outrun its reality.
Best wishes, Marc From: Paul Horwitz <phorw...@hotmail.com<mailto:phorw...@hotmail.com>> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Date: Tuesday, December 3, 2013 11:38 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: Warner v. City of Boca Raton Hopefully this is not ad hominem! I don't see anything unique about this in RFRA. It is a standard concern with any legal test that involves the use of standards, balancing, and other questions of judicial application in the case. It is true of vast swaths of constitutional law and common law. See, e.g., Posner's discussion in Reflections on Judging of the difficulties of framing legal tests given the plasticity and imprecision of language. It is what leads some legal thinkers--but not Posner, in all cases--to favor the use of rules and formalism. But it's not unique to religion, religious freedom, or RFRA. To this I would add that 1) rules and formalism front-load but do not eliminate the problem of judicial discretion; 2) although the problem Marci raises is quite genuine, not everyone agrees that eliminating balancing or judicial discretion root and branch are necessary and indefeasible elements of whatever "the rule of law" is; 3) whether rules or standards are preferable in particular areas is better analyzed, in my view, as a matter of pragmatic weighing and institutional analysis than by invoking the charged and protean terms of the rule of law; and 4) whether such decisions constitute a violation of the oath is contestable for similar reasons, and we're better off just asking whether particular decisions are right or wrong given the legal and factual materials in play. (Just as we would in asking whether, say, a court soundly decided a case involving a clear and present danger or proximate cause or reasonable person inquiry). Regards, Paul Horwitz On Dec 3, 2013, at 10:13 AM, "Marci Hamilton" <hamilto...@aol.com<mailto:hamilto...@aol.com>> wrote: I find it interesting that Doug concedes in this thread that results in RFRA cases turn on the judge's predilections on religious liberty regardless of the law's language. I have witnessed this lack of neutrality in several cases, most notably the ruling by Judge Randa in the Milwaukee bankruptcy case. (Full disclosure-- I represent the creditors' committee composed mostly of sex abuse victims in that case.) RFRA seems to invite a lack of neutrality despite its language saying the Establishment Clause is to be unaffected. The results as described by Doug and Chris strike me as involving judges who are being encouraged to and who do violate the Establishment Clause and their code of judicial ethics. I am interested in others thoughts on this. I would appreciate no ad hominem responses to these factual observations. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 3, 2013, at 10:46 AM, "Douglas Laycock" <dlayc...@virginia.edu<mailto:dlayc...@virginia.edu>> wrote: Michael cites Warner v. Boca Raton, 887 So.2d 1023 (Fla. 2004), as an example of a case where the word “substantially” was critical to the result. And that is what the court says. But it is quite obviously not true. The Florida court read “substantially” to mean that only those practices that were required by a faith were protected by Florida RFRA. The Florida legislature had attempted to specifically negate any such requirement, as the court recognized. The statute defined “exercise of religion” as “an act or refusal to act that is substantially motivated by religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief.” The Florida court’s interpretation of “substantially burden” negated this definition and read back into the statute a requirement that religious exercise be compulsory to be protected. The statutory definition of religious exercise will never again matter to a Florida RFRA case; only a subset of religious exercise as defined will ever be protected. This opinion is plainly driven not by the word “substantially,” but by the court’s disagreement with the scope of the statute. Full disclosure: I argued the case for the plaintiffs. Here is what the court said about the statutory definition, just before it turned to the meaning of “substantially burden”: “The FRFRA includes several important definitions: * * * (3) “Exercise of religion” means an act or refusal to act that is substantially motivated by a religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief. § 761.02, Fla. Stat. (2003). * * * The protection afforded to the free exercise of religiously motivated activity under the FRFRA is broader than that afforded by the decisions of the United States Supreme Court for two interrelated reasons. First, the FRFRA expands the free exercise right as construed by the Supreme Court in Smith because it reinstates the Court's pre-Smith holdings by applying the compelling interest test to neutral laws of general application. Second, under the FRFRA the definition of protected “exercise of religion” subject to the compelling state interest test includes any act or refusal to act whether or not compelled by or central to a system of religious belief. The legislative history of the FRFRA suggests that in order to state a claim that the government has infringed upon the free exercise of religion, a plaintiff must only establish that the government has placed a substantial burden on a practice motivated by a sincere religious belief.” 887 So.2d at 1031-32 (emphasis in original). Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -----Original Message----- From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Masinter Sent: Monday, December 02, 2013 8:44 PM To: Law & Religion issues for Law Academics; Christopher Lund Cc: Law & Religion issues for Law Academics Subject: Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs The adjective <substantial> must do some work. For one state case so holding, see Warner v. City of Boca Raton, 807 So. 2d 1023, 1033-1034 (Fla. 2004): Accordingly, we conclude that the narrow definition of substantial burden adopted by the Fourth, Ninth, and Eleventh Circuits is most consistent with the language and intent of the FRFRA. Thus, we hold that a substantial burden on the free exercise of religion is one that either compels the religious adherent to engage in conduct that his religion forbids or forbids him to engage in conduct that his religion requires. See Mack, 80 F.3d at 1178. We acknowledge that our adoption of this definition may occasionally place courts in the position of having to determine whether a particular religious practice is obligatory or forbidden. However, we conclude that this inquiry is preferable to one that requires the Court to question the centrality of a particular religious belief or negates the legislative requirement that only conduct that is substantially burdened be protected by strict scrutiny. By analogy, consider the word <reasonable> in the phrase <reasonable accommodation> as construed by U.S. Airways v. Barnett, 535 U.S. 391, 400-401 (2002): These arguments [equating reasonable with effective] do not persuade us that Barnett's legal interpretation of "reasonable" is correct. For one thing, in ordinary English the word "reasonable" does not mean "effective." It is the word "accommodation," not the word "reasonable," that conveys the need for effectiveness. An ineffective "modification" or "adjustment" will not accommodate a disabled individual's limitations. Nor does an ordinary English meaning of the term "reasonable accommodation" make of it a simple, redundant mirror image of the term "undue hardship." The statute refers to an "undue hardship on the operation of the business." 42 U. S. C. § 12112(b)(5)(A). Yet a demand for an effective accommodation could prove unreasonable because of its impact, not on business operations, but on fellow employees—say, because it will lead to dismissals, relocations, or modification of employee benefits to which an employer, looking at the matter from the perspective of the business itself, may be relatively indifferent. Perhaps the Court will defer to the believer's subjective assessment of what is substantial, but if it does, won't it have equated substantial with sincere, effectively rewriting RFRA? Mike Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu<mailto:masin...@nova.edu> 954.262.3835 (fax) _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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<mailto: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.
