Cases such as those Chip describes probe far too deeply into what the religious claimant believes. And they are not the only ones. Congress tried to address such cases in the RLUIPA amendments to RFRA, specifying that a religious practice need not be compulsory or central to be protected. The brief that the Baptist Joint Committee and I filed emphasizes the error of these cases, the danger of overly intrusive inquiries, and the need for substantial deference to religious understandings of what is burdensome.
But we say that such deference cannot be absolute, that it never has been absolute, and that if it were absolute, absurd results would follow. But absolute deference is what both sets of petitioners ask for. They say the courts can examine sincerity, and they can examine the magnitude of the penalty for non-compliance, but then the substantial burden inquiry is over. Courts cannot examine the substantiality of the burden on religion, apart from the penalties. And as Marty suggested in a separate post, our brief explicitly proposes a bright-line test: “Religious objectors are not entitled to exemptions for secular entities they deal with at arm’s length, or to control the government’s regulation of such entities.” 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 Ira Lupu Sent: Tuesday, March 22, 2016 12:40 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Zubik / Little Sisters - testing the scope via a hypothetical We cite four federal district court decisions at pp. 228-229 in the book -- Luke v. Williams (Oregon); Sayed v. Proffitt (Colorado); Vigil v. Jones (Colorado); Wares v. Simmons (Kansas), https://casetext.com/case/wares-v-simmons-2. Ware involved rabbinical testimony that certain books, desired by a prisoner, were non-essential to the Jewish faith. Pre-1997 RFRA cases from prisons were thick with decisions involving the question of religious burdensomeness (prison officials do not want to have to meet the compelling interest test, even a prison-adjusted one, every time a prisoner asserts the religious significance of a forbidden practice.) I cite a number of them in The Failure of RFRA, 20 U. Ark. Little Rock L.J. 575 (1998). RLUIPA land use cases involve questions of the religious impact of not being able to expand a church, add a wing for a church school, or build a parking lot. And do you deny that Yoder invites inquiry into the religious significance or religious impact of a challenged policy? That is the only "burden" inquiry in Yoder. Please keep in mind that I find all of this deeply troublesome. But RFRA invites it. (Thomas v. Review Board says courts cannot second guess a claimant's reading of Scripture. But that does not mean courts cannot question the religious significance of the actions forbidden or required.) On Tue, Mar 22, 2016 at 11:57 AM, Kniffin, Eric N. <eknif...@lrrc.com<mailto:eknif...@lrrc.com>> wrote: Ira, I don't understand the distinction I think you are trying to make. We agree that sounds like a court must accept the sincere testimony of a Muslim prisoner who claims his faith requires him to keep a half inch beard. But you believe the court may instead decide that being forced to shave is, contrary to the prisoner's testimony, actually not that big of a deal? What cases have been decided on this basis? Eric
_______________________________________________ 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.
