Actually, Doug, I don't think the petitioners in Zubik ever "say that the courts cannot question what counts as a religious burden.” They merely insist that courts cannot question the substance of their sincere religious belief, a point I assume you would agree with.
But this is not to deny the courts any role under the substantial burden test. For example, whether there is a substantial burden on a sincere religious belief is something courts can determine by looking at the force of the government’s compulsion. As the ETBU petitioners put it on page 47 of their opening brief (http://www.becketfund.org/wp-content/uploads/2016/01/Little-Sisters-Merits-Brief.pdf), “The substantial burden analysis turns on the substantiality of the pressure the government applies to compel the objected-to actions, not the physical or financial burdens of undertaking those actions.” Doug, do you think that's not the right test for substantial burden? If so, what is the right test? I thought the petitioners’ statement was pretty basic RFRA/RLUIPA law. Back to Michael’s park worker hypothetical, Doug is of course right that key question comes from Title VII: whether a reasonable accommodation could be fashioned without undue hardship to the employer. And to decide that question it is of course relevant what the employer has been willing to do for other workers. To make the analogy to Zubik work, we’ll have to post some more facts about the Seventh-day Adventist’s employer. We would need an employer who grants a complete religious exemption for some religious employees based on their relationship to their church (say those who were officers of their churches) but refuses to give the same treatment to others with the exact same religious objection (say those who are just members of their churches, but not officers). In that circumstance, the employer probably would and should have a pretty hard time claiming that this employee's religious objection cannot be worked around, when it is already working around the same objection for others. And the employer's argument would be weaker still if it had grandfathered in a bunch of other employees, etc. Eric Eric N. Kniffin Of Counsel 719.386.3017<tel:719.386.3017> office 719.386.3070<tel:719.386.3070> fax eknif...@lrrc.com<mailto:eknif...@lrrc.com> _____________________________ [cid:6F6EDA96-7F5F-4417-B3A8-E57EB49E4904] Lewis Roca Rothgerber Christie LLP 90 South Cascade Avenue, Suite 1100<x-apple-data-detectors://2/1> Colorado Springs, Colorado 80903-1662<x-apple-data-detectors://2/1> lrrc.com<http://lrrc.com/> On Mar 21, 2016, at 7:35 PM, Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote: Some of these extreme cases will involve compelling government interests, including most of Paul's hypotheticals. But courts could not question the claim of substantial burden on religion, according to the Zubik petitioners. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia 580 Massie Road Charlottesville, VA 22903 434-243-8546 ________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] on behalf of Michael Peabody [mich...@californialaw.org<mailto:mich...@californialaw.org>] Sent: Monday, March 21, 2016 9:27 PM To: Law & Religion issues for Law Academics; Paul Finkelman Subject: Re: Zubik / Little Sisters - testing the scope via a hypothetical I am asserting this only insofar as the degree of accommodation is considered insufficient by the individual hypothetical Adventist. (Which is highly hypothetical as the vast majority gladly accept the EEOC accommodation.) An ideal hypothetical would simply involve a federal regulation that unintentionally infringes on religion (in the slightest degree possible) but where the religious person invokes RFRA as interpreted by a pro-Zubik Supreme Court ruling where the religious party has the full discretion to determine whether the government has properly accommodated their beliefs. In other words, RFRA on steroids. The more I think of it, the more I wonder if this set of ACA cases would actually go as far as to address the Kim Davis accommodation scenario in which a county clerk sending same-sex couples to another county to get wedding certificates was considered the most reasonable accommodation by her attorneys. (As indicated in briefs, etc.) In the Davis scenario we don't have the Title VII issue of reasonableness, only RFRA to contend with. On Mar 21, 2016 4:52 PM, "Paul Finkelman" <paul.finkel...@yahoo.com<redir.aspx?REF=9ZLonjkEbRzSpETKKmf5gtfjMvcozPoEELKfdirf2tFLySXg8VHTCAFtYWlsdG86cGF1bC5maW5rZWxtYW5AeWFob28uY29t>> wrote: Dear Michael: I just want to make sure I understand your hypothetical, which is: that this person cannot only refuse to work on Friday afternoon, but because of her religious beliefs, she can prevent anyone from working after sundown on Friday because that means she would be complicit in a sinful act by allowing someone who is not an Adventist, to work on Saturday. Taken to its logical position an Adventist who is a supervisor in the post office would be stop all Saturday mail service, shut down the post office, etc. because this would be participation in sin. The same would be true, I suppose, for the fire department, the EMT services, the hospital, etc. And for that matter, not just the gift shop, but, if the Adventist was the chief ranger, the whole national park would be shut down on Saturday. Is this what you are asserting in your hypothetical, or am I missing something? ****************** Paul Finkelman Ariel F. Sallows Visiting Professor of Human Rights Law College of Law University of Saskatchewan 15 Campus Drive Saskatoon, SK S7N 5A6 CANADA paul.finkel...@yahoo.com<redir.aspx?REF=9ZLonjkEbRzSpETKKmf5gtfjMvcozPoEELKfdirf2tFLySXg8VHTCAFtYWlsdG86cGF1bC5maW5rZWxtYW5AeWFob28uY29t> c) 518.605.0296<tel:518.605.0296> and Senior Fellow Democracy, Citizenship and Constitutionalism Program University of Pennsylvania Call Send SMS Call from mobile Add to Skype You'll need Skype CreditFree via Skype ________________________________ From: Michael Peabody <mich...@californialaw.org<redir.aspx?REF=kb8x155Y4612-3rkofowQ0keE76Odzov_nF2M6R0_UZLySXg8VHTCAFtYWlsdG86bWljaGFlbEBjYWxpZm9ybmlhbGF3Lm9yZw..>> To: religionlaw@lists.ucla.edu<redir.aspx?REF=ZsKmce7Yorqp9SDXUoMwH39EerjrEv2G2BQ_-HlF2cdLySXg8VHTCAFtYWlsdG86cmVsaWdpb25sYXdAbGlzdHMudWNsYS5lZHU.> Sent: Monday, March 21, 2016 4:35 PM Subject: Zubik / Little Sisters - testing the scope via a hypothetical The Supreme Court will be hearing these cases on Wednesday and I'm trying to figure out how broadly this may affect religious accommodation beyond the ACA cases. Most of the briefs in favor of the petitioners describe broad sweeping "attacks" on religious freedom while the respondents seem to argue that the built-in accommodation should be considered sufficient. In an effort to try to explain this to non-lawyers (of which many are Seventh-day Adventists) who are asking me about what this case means, I've come up with a hypothetical that I'm presently testing out. In making this hypothetical, I make an assumption that RFRA was originally intended to protect individuals (not institutions) to avoid the post-Hobby Lobby reaction that it is now about organizations and I am relying on a federal regulation model to avoid jurisdictional confusion. I do realize that my hypothetical involves an employer-employee relationship, but I tried to manage this angle by making the closing time a function of a bill passed by Congress than an employee scheduling issue. Here is the hypothetical: A Seventh-day Adventist is a federal employee who works as the manager of a gift shop in a remote national park. As part of a bill designed to encourage people to visit the parks, Congress requires that all park gift shop facilities remain open until 6:00 p.m. For our Seventh-day Adventist, this poses a problem in the winter months as it violates her religious beliefs to work past sundown on Friday. The EEOC guidelines suggest an accommodation that would work (swapping shifts with co-workers) and a co-worker is willing to fulfill the duty, and other accommodations such as shifting positions are simply not possible. The Seventh-day Adventist refuses to swap shifts because she believes that this would make her complicit in a sinful act. In fact, she refuses to even acknowledge that such an accommodation is possible because by admitting that, she would be opening the door for somebody to attempt to fulfill the accommodation which would violate her religious beliefs. Could a finding for the petitioners in these cases permit this and similar scenarios? Is there a better hypothetical? Thanks! Michael Peabody, Esq. 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