Bob Tuttle and I have written a book ("Secular Government, Religious
People") that centrally argues that the Establishment Clause renders the
state incompetent to decide exclusively ecclesiastical questions. This is
the basis for the ministerial exception, in which the question is general
fitness (relevant criteria) or particular fitness (individual attributes)
for ministry.Accordingly, we criticize the prison cases that undertake decision of such ecclesiastical questions, especially the ones that rely on "expert" testimony from imams and other clergy about the significance of certain practices. This seems to us to be a deep flaw in the very structure of RFRA and RLUIPA. But it's just wrong to assert that the positive law of "substantial burden" is limited to the force of government compulsion, and has nothing to do with religious impact or religious significance. On Tue, Mar 22, 2016 at 10:33 AM, Gregory S. Baylor <gbay...@adflegal.org> wrote: > So, under this approach, would a court be empowered to assess the > magnitude of the divine disfavor a plan sponsor claims it would suffer if > it complied with the mandate? > > > > Thanks. > > > > Greg Baylor > > > [image: Alliance Defending Freedom] <http://www.adflegal.org/> Gregory > S. Baylor > Senior Counsel, Director of Center for Religious Schools > 202-393-8690 (Office) > 202-888-7628 (Direct Dial) > 202-347-3622 (Fax) > gbay...@adflegal.org > ADFlegal.org > Not Licensed in DC > Practice Limited to Federal Court > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu > *Sent:* Tuesday, March 22, 2016 10:25 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Zubik / Little Sisters - testing the scope via a > hypothetical > > > > Eric Kniffin writes that ". . . 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." That's correct, but it's only > half the story. Look at Yoder (on which RFRA declares it is modeled), in > which most of the analysis on the burden side concerns the religious impact > of the school attendance requirement, NOT the small daily fine for truancy. > > > And read the many prisoner cases under RFRA and then RLUIPA, where the > analysis is about the religious significance of the practice the prisoner > wants permission to undertake -- prayer meetings, long hair or beards, > possession of particular books, having certain foods, washing certain > number of times per day, etc. In those cases, the government's > "compulsion" is total -- permission denied. So the burden analysis goes to > religious impact of the denial, and there are opinions that explore these > questions (in part because the government's interest in denying permission > may not be compelling at all.) The legislative history of RFRA shows that > the word "substantial" was added to permit this kind of inquiry -- that is, > into the severity of religious impact on the complainant. Why should > claims of "conscience" be exempt from this element of the statute? > > > > > > On Tue, Mar 22, 2016 at 8:49 AM, Kniffin, Eric N. <eknif...@lrrc.com> > wrote: > > 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 office > > 719.386.3070 fax > > eknif...@lrrc.com > > _____________________________ > > Lewis Roca Rothgerber Christie LLP > > 90 South Cascade Avenue, Suite 1100 > > Colorado Springs, Colorado 80903-1662 > > lrrc.com > > > > > > > On Mar 21, 2016, at 7:35 PM, Laycock, H Douglas (hdl5c) < > 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 [ > religionlaw-boun...@lists.ucla.edu] on behalf of Michael Peabody [ > 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 > <http://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 > <http://redir.aspx?REF=9ZLonjkEbRzSpETKKmf5gtfjMvcozPoEELKfdirf2tFLySXg8VHTCAFtYWlsdG86cGF1bC5maW5rZWxtYW5AeWFob28uY29t> > c) 518.605.0296 <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 > <http://redir.aspx?REF=kb8x155Y4612-3rkofowQ0keE76Odzov_nF2M6R0_UZLySXg8VHTCAFtYWlsdG86bWljaGFlbEBjYWxpZm9ybmlhbGF3Lm9yZw..> > > > *To:* religionlaw@lists.ucla.edu > <http://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. > ReligiousLiberty.TV > http://www.religiousliberty.tv > <http://redir.aspx?REF=TmS8qv-bNWqnPt5cgJ7k5f-XZpMc4097_Xo0f0Tkya1LySXg8VHTCAFodHRwOi8vd3d3LnJlbGlnaW91c2xpYmVydHkudHYv> > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > <http://redir.aspx?REF=2N9K2q5LNTd0LELn49RJiOU4rbIiQCPSMgYyJPBdTDxLySXg8VHTCAFtYWlsdG86UmVsaWdpb25sYXdAbGlzdHMudWNsYS5lZHU.> > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > <http://redir.aspx?REF=I3mZq_YdZocXEX1HTNURY_MrMz6g8yPXmORvRB5OLx5LySXg8VHTCAFodHRwOi8vbGlzdHMudWNsYS5lZHUvY2dpLWJpbi9tYWlsbWFuL2xpc3RpbmZvL3JlbGlnaW9ubGF3> > > 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 > <http://redir.aspx?REF=2N9K2q5LNTd0LELn49RJiOU4rbIiQCPSMgYyJPBdTDxLySXg8VHTCAFtYWlsdG86UmVsaWdpb25sYXdAbGlzdHMudWNsYS5lZHU.> > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > <http://redir.aspx?REF=I3mZq_YdZocXEX1HTNURY_MrMz6g8yPXmORvRB5OLx5LySXg8VHTCAFodHRwOi8vbGlzdHMudWNsYS5lZHUvY2dpLWJpbi9tYWlsbWFuL2xpc3RpbmZvL3JlbGlnaW9ubGF3> > > 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. > > > ------------------------------ > > > This message and any attachments are intended only for the use of the > individual or entity to which they are addressed. If the reader of this > message or an attachment is not the intended recipient or the employee or > agent responsible for delivering the message or attachment to the intended > recipient you are hereby notified that any dissemination, distribution or > copying of this message or any attachment is strictly prohibited. If you > have received this communication in error, please notify us immediately by > replying to the sender. The information transmitted in this message and any > attachments may be privileged, is intended only for the personal and > confidential use of the intended recipients, and is covered by the > Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. > > > _______________________________________________ > 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. > > > > > > -- > > Ira C. Lupu > F. Elwood & Eleanor Davis Professor of Law, Emeritus > George Washington University Law School > 2000 H St., NW > Washington, DC 20052 > (202)994-7053 > > Co-author (with Professor Robert Tuttle) of "Secular Government, Religious > People" ( Wm. B. Eerdmans Pub. Co., 2014)) > My SSRN papers are here: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > > This e-mail message from Alliance Defending Freedom and any accompanying > documents or embedded messages is intended for the named recipients only. > Because Alliance Defending Freedom is a legal entity engaged in the > practice of law, this communication contains information, which may include > metadata, that is confidential, privileged, attorney work product, or > otherwise protected from disclosure under applicable law. If you have > received this message in error, are not a named recipient, or are not the > employee or agent responsible for delivering this message to a named > recipient, be advised that any review, disclosure, use, dissemination, > distribution, or reproduction of this message or its contents is strictly > prohibited. If you have received this message in error, please immediately > notify the sender and permanently delete the message. PRIVILEGED AND > CONFIDENTIAL - ATTORNEY-CLIENT COMMUNICATION/ATTORNEY WORK PRODUCT. > > > _______________________________________________ > 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. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" ( Wm. B. Eerdmans Pub. Co., 2014)) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
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