I have suggested to my students (Yeah, I'm still teaching one semester a year) that RFRA as construed in Hobby Lobby pretty much leaves it to each person's conscience to determine when they are substantially burdened by a federal law when the law allegedly compels them to do something that their religion prohibits. Complicity arguments seem to have no limit other than sincerity.
But I also suggest that if the law allegedly make it more difficult for the individual to engage in some conduct that his or her religion requires, then the substantial burden requirement still may have some teeth to it. State action that has only an incidental and attenuated connection to the burden on religious practice may be held not to substantially burden religious exercise. So if Department of Agriculture regulations unintentionally create a financial incentive that motivates some growers of peyote to shift to another crop and the more limited supply of peyote increases the price of obtaining this sacrament for members of the Native American faith that uses peyote in rituals, I don't think Hobby Lobby would preclude a court from holding that the regulations do not substantially burden the religious exercise of individuals who use peyote in religious rituals. Attenuation still matters for substantial burden purposes in cases involving state action that allegedly makes it more difficult for a person to practice his or her faith. Am I wrong about that. Chip? Alan ________________________________ From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> on behalf of Ira Lupu <icl...@law.gwu.edu> Sent: Tuesday, November 22, 2016 1:37:05 PM To: Law & Religion issues for Law Academics Subject: Re: Scalia's views of RFRA? The Scalia opinion in Smith of course did not anticipate a law like RFRA; instead, he was referencing practice-specific accommodations (like a peyote prohibition that exempted Native American Church members who used peyote in sacraments.) Mary Anne, your comment has an excluded middle -- RFRA, as construed in Hobby Lobby, indeed makes "each conscience a law unto itself” with respect to what is burdensome to religious exercise. Nevertheless, judges still have to engage in "balancing" in light of RFRA's exception (re: whether application of the burden to the person furthers compelling governmental interests, and whether that is the least restrictive means to do so). But the "law unto itself" quality associated with RFRA's rule means that the government will very frequently have to satisfy that test, which Hobby Lobby made far stricter than the pre-Smith law ever had. So the balance seems highly tilted toward the government (though I strongly suspect it will not remain that way). On Tue, Nov 22, 2016 at 4:26 PM, Case, Mary Anne <mac...@law.uchicago.edu<mailto:mac...@law.uchicago.edu>> wrote: The quoted language comes directly from Scalia’s opinion in Smith. The full sentence is: ”It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.” There thus seem to be 2 typical Scalia desiderata in tension with one another – the desire for clear rules and the desire that the laws have democratic warrant. In the quoted sentence, he seems to be suggesting that sending accommodation back to the legislature will have the advantage of getting the courts out of the business of balancing, which he hated, but of course RFRA mandates precisely such balancing, unless it is read instead to “make each conscience a law unto itself.” From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Steven Jamar Sent: Tuesday, November 22, 2016 3:20 PM To: Law Religion & Law List Subject: Re: Scalia's views of RFRA? I never read Smith that way — it was a straight up carte blanche to the legislative and executive branches provided the law was neutral and generally applicable — no weighing of competing interests involved. Steve -- Prof. Steven D. Jamar Assoc. Dir. of International Programs Institute for Intellectual Property and Social Justice http://iipsj.org http://sdjlaw.org "A life directed chiefly toward the fulfillment of personal desires sooner or later always leads to bitter disappointment." Albert Einstein On Nov 22, 2016, at 4:07 PM, Case, Mary Anne <mac...@law.uchicago.edu<mailto:mac...@law.uchicago.edu>> wrote: judges the task of “weigh[ing] the social importance of all laws against the centrality of all religious beliefs”(Smith) ________________________________ _______________________________________________ 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. -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 301-928-9178 (mobile, preferred) 202-994-7053 (office) 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
_______________________________________________ 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.
