Does substantial matter?
Doug may well be right that for most lower courts (but not all -- see Michael Masinter's post), whether the term burden is modified by substantial will not matter, because such courts inevitably end up balancing the degree (or nature) of the burden on religious exercise -- indeed, the degree of religious significance -- against the strength of the government's interest in denying an exemption. From where we stand today, however, that's a somewhat odd argument to make, for two reasons. The first is that the terms of RFRA (and most state analogues) don't ask courts to do any such balancing: Instead, the court is asked in the first instance to assess whether there is a substantial burden -- on the face of it, what appears to be a binary, yes or no question -- and then (in theory) is not supposed to further assess the importance/substantiality/centrality/degree/etc. of that burden when moving on to the second step, which merely asks whether the government interest is compelling and can otherwise be advanced, even with a religious exemption. The second reason that we can't so easily dismiss substantial is, of course, that the Supreme Court has just granted cert. in a landmark case that will likely turn on precisely what the word substantial means. (At the very least, that question will get a thorough workout in the briefing and argument.) Many of those who are supporting Hobby Lobby will presumably argue that the adjective substantial refers only to the degree of coercion resulting from the government action (criminal sanctions being most coercive and thus creating the most substantial burden; denial of unemployment benefits also substantial (cf. Sherbert); denial of highly discretionary, rarely awarded benefits much less substantial, etc.). The government and its amici will no doubt argue, by contrast, that the court must also assess the degree of importance of the religious exercise to the plaintiff. My understanding from Doug's previous writings is that he agrees that some such assessment of religious significance (a continuous variable in Doug's terms -- not an on/off switch) is necessary, or at least inevitable (as his post here suggests). For example, he wrote this in a 2009 piece in Rutgers J. L Rel.: The text of the Constitution applies to all forms of religious practice, central or peripheral. Still, *the argument against oppression is strongest with respect to the most important religious practices, and weaker with respect to marginal practices that believers might be willing to give up.*But the importance of religious practices varies from person to person, and is difficult for courts to assess. The Court is right that it would be a mistake to hold that practices central to a religion are constitutionally protected and that practices below some threshold of centrality are not constitutionally protected. A far better rule is that all exercise of religion is constitutionally protected, but that *less weighty government interests can justify burdens on less weighty religious practices*. A threshold requirement of centrality would be an all-or-nothing rule; it would treat a continuous variable--religious significance--as though it were a dichotomous variable, and it would thereby greatly magnify the consequences of the inevitable errors in assessing religious significance. Such a threshold requirement would wholly deny protection, instead of according somewhat less protection, when religious significance is somewhat underestimated. But *the impossibility of fairly administering a threshold requirement of centrality does not mean that the courts should wholly ignore the importance of the religious practice when they are asked to decide a claim to exemption*. The compelling interest test is best understood as a balancing test with the thumb on the scale in favor of protecting constitutional rights. The best way to formulate the question is whether the government interest compellingly outweighs the religious interest. *The compelling interest test is not often formulated that way, but I think that it must operate that way in practice, and sometimes in the course of applying the test, the Court seems to say as much*. To borrow and correct Justice Scalia's example, it is easier for the government to justify a ban on throwing rice at weddings than to justify a ban on getting married in church. On Mon, Dec 2, 2013 at 12:28 PM, Douglas Laycock dlayc...@virginia.eduwrote: Apologies to anyone getting this twice; I think it bounced the first time. What I said is in the second letter (link below) and summarized in the e-mail to which Marci responded. We supported the bill as drafted, without “substantial;” I also suggested that the committee restore “substantial” if it were bothered by the omission. I think most of my co-signers would have agreed with that suggestion, but I don’t know that, because they were not asked to sign the second letter. I said it didn’t matter much because the
RE: Does substantial matter?
I stand by what Marty quotes, which is why I think the facts of cases, and the judge's attitude towards the statute and religious liberty, generally make far more difference than the presence or absence of the word substantial. No doubt there are some cases where, given the facts and the judge's attitude, the presence or absence of substantial makes the difference. I don't think there are many. Michael Masinter's example is clearly not such a case; more on that shortly,. 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 Marty Lederman Sent: Tuesday, December 03, 2013 8:45 AM To: Law Religion issues for Law Academics Subject: Does substantial matter? Doug may well be right that for most lower courts (but not all -- see Michael Masinter's post), whether the term burden is modified by substantial will not matter, because such courts inevitably end up balancing the degree (or nature) of the burden on religious exercise -- indeed, the degree of religious significance -- against the strength of the government's interest in denying an exemption. From where we stand today, however, that's a somewhat odd argument to make, for two reasons. The first is that the terms of RFRA (and most state analogues) don't ask courts to do any such balancing: Instead, the court is asked in the first instance to assess whether there is a substantial burden -- on the face of it, what appears to be a binary, yes or no question -- and then (in theory) is not supposed to further assess the importance/substantiality/centrality/degree/etc. of that burden when moving on to the second step, which merely asks whether the government interest is compelling and can otherwise be advanced, even with a religious exemption. The second reason that we can't so easily dismiss substantial is, of course, that the Supreme Court has just granted cert. in a landmark case that will likely turn on precisely what the word substantial means. (At the very least, that question will get a thorough workout in the briefing and argument.) Many of those who are supporting Hobby Lobby will presumably argue that the adjective substantial refers only to the degree of coercion resulting from the government action (criminal sanctions being most coercive and thus creating the most substantial burden; denial of unemployment benefits also substantial (cf. Sherbert); denial of highly discretionary, rarely awarded benefits much less substantial, etc.). The government and its amici will no doubt argue, by contrast, that the court must also assess the degree of importance of the religious exercise to the plaintiff. My understanding from Doug's previous writings is that he agrees that some such assessment of religious significance (a continuous variable in Doug's terms -- not an on/off switch) is necessary, or at least inevitable (as his post here suggests). For example, he wrote this in a 2009 piece in Rutgers J. L Rel.: The text of the Constitution applies to all forms of religious practice, central or peripheral. Still, the argument against oppression is strongest with respect to the most important religious practices, and weaker with respect to marginal practices that believers might be willing to give up. But the importance of religious practices varies from person to person, and is difficult for courts to assess. The Court is right that it would be a mistake to hold that practices central to a religion are constitutionally protected and that practices below some threshold of centrality are not constitutionally protected. A far better rule is that all exercise of religion is constitutionally protected, but that less weighty government interests can justify burdens on less weighty religious practices. A threshold requirement of centrality would be an all-or-nothing rule; it would treat a continuous variable--religious significance--as though it were a dichotomous variable, and it would thereby greatly magnify the consequences of the inevitable errors in assessing religious significance. Such a threshold requirement would wholly deny protection, instead of according somewhat less protection, when religious significance is somewhat underestimated. But the impossibility of fairly administering a threshold requirement of centrality does not mean that the courts should wholly ignore the importance of the religious practice when they are asked to decide a claim to exemption. The compelling interest test is best understood as a balancing test with the thumb on the scale in favor of protecting constitutional rights. The best way to formulate the question is whether the government interest compellingly outweighs the religious interest. The compelling interest test is not often formulated that way, but I think that it must operate that way in
Re: RFRA, the Establishment Clause, and saving constructions
The reason not to construe RFRA to apply to all secular philosophical objectors is that it's just plain crazy as a matter of policy. RFRA (which we would have to rename FRA after such a construction) applies to all of federal law. So this construction would give the holder of every crackpot philosophy about the limited role of government the legal leverage of requiring strict scrutiny as to why he or she should not be exempted from the reach of federal law. (Title VII is only about the employment relation, and the duty of accommodation is limited to de minimis burdens on employers. RFRA, or your FRA, would extend to everything.) So if construction to avoid constitutional doubt is what we are looking for, the only sensible move is to keep the R -- that is what Congress was doing in 1993 -- and to construe RFRA so as to avoid significant third party harms (in this case, to employees). On Mon, Dec 2, 2013 at 11:43 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I appreciate Jim’s argument, and also the arguments that the problem with the exemption isn’t discrimination in favor of religion, but rather the burden on third parties, regardless of whether the exemption is only for the religious. (I hope to respond to those arguments soon.) But as to the point below -- and assuming that a RFRA employer mandate exemption that covers secular conscientious objectors is as constitutional as the conscientious objector draft exemption -- wouldn’t the canon of interpreting statutes to avoid unconstitutionality (even setting aside constitutional “doubt”) be relevant here? It’s true that RFRA generally endorses *Sherbert *and *Yoder* and other federal cases, and in the absence of an Establishment Clause objection it might well be interpreted to apply only to religious objectors. But if indeed such an interpretation would lead to a finding that RFRA is unconstitutional, wouldn’t that cut pretty strongly in favor of avoiding that interpretation, and including secular philosophical objectors? The language isn’t as clearly hostile to such an interpretation as the language in the draft law was in *Welsh*. And, as I noted, the other broad federal religious accommodation regime -- the Title VII religious accommodation provision -- has largely been read by lower courts as covering secular philosophical objectors as well as religious ones. Why wouldn’t that, coupled with the avoidance of unconstitutionality canon, counsel in favor of a constitutionally permissible interpretation rather than a constitutionally impermissible one? Eugene *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske *Sent:* Monday, December 02, 2013 8:11 AM *To:* Law Religion issues for Law Academics *Subject:* Re: The Establishment Clause, burden on others, the employer mandate, and the draft Eugene -- One question about this passage from your message: I take it that RFRA could likewise be interpreted to apply to philosophical conscientious beliefs. Could such an interpretation of RFRA be squared with its stated purpose of restoring the protection of free exercise as set forth in Yoder, which said that philosophic beliefs were not protected under the Free Exercise Clause? [I]if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau's choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses. - Yoder at 216. Of course, as you note, the Court had to twist the language of the conscientious objector exemption to apply it to philosophic conscientious beliefs, but it's hard to imagine today's Court engaging in the same type of (non) textual analysis. - Jim ___ 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 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
Warner v. City of Boca Raton
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 courts 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 courts 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
Re: Warner v. City of Boca Raton
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 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] 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
RE: RFRA, the Establishment Clause, and saving constructions
Why is it so crazy? If, for instance, religious objectors to abortion get exemptions from having to participate in abortion, conscientious secular philosophical objectors would get such exemptions, too. That seems fair, and is indeed the rule both under various abortion-specific conscience clauses and, as I noted, as to Title VII -- which is narrower than RFRA in some ways, but broader in another very important way (since it applies to private employers). Nor has the interpretation of Title VII to which I point been seen by courts as removing the religious from religious accommodation; it just follows cases such as Welsh in treating deeply held conscientious philosophical beliefs similar to religious beliefs, something that would often have to be done in any event given the large variety of religious views, including nontheistic ones. As to crackpot philosoph[ies], crackpot religious objections -- including idiosyncratic ones -- are already covered under RFRA. Moreover, since the great majority of Americans consists of religious believers, most philosophical objections can be tied by at least some of the objectors to their religious beliefs, especially since all that is required is sincerity of belief and not the sharing of the belief by a larger group. Yet RFRA has not been terribly burdensome for the government, as best I can tell. Why would allowing similarly crackpot (or noncrackpot) secular philosophical objections to be covered suddenly cause much bigger problems? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, December 03, 2013 7:45 AM To: Law Religion issues for Law Academics Subject: Re: RFRA, the Establishment Clause, and saving constructions The reason not to construe RFRA to apply to all secular philosophical objectors is that it's just plain crazy as a matter of policy. RFRA (which we would have to rename FRA after such a construction) applies to all of federal law. So this construction would give the holder of every crackpot philosophy about the limited role of government the legal leverage of requiring strict scrutiny as to why he or she should not be exempted from the reach of federal law. (Title VII is only about the employment relation, and the duty of accommodation is limited to de minimis burdens on employers. RFRA, or your FRA, would extend to everything.) So if construction to avoid constitutional doubt is what we are looking for, the only sensible move is to keep the R -- that is what Congress was doing in 1993 -- and to construe RFRA so as to avoid significant third party harms (in this case, to employees). On Mon, Dec 2, 2013 at 11:43 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I appreciate Jim's argument, and also the arguments that the problem with the exemption isn't discrimination in favor of religion, but rather the burden on third parties, regardless of whether the exemption is only for the religious. (I hope to respond to those arguments soon.) But as to the point below -- and assuming that a RFRA employer mandate exemption that covers secular conscientious objectors is as constitutional as the conscientious objector draft exemption -- wouldn't the canon of interpreting statutes to avoid unconstitutionality (even setting aside constitutional doubt) be relevant here? It's true that RFRA generally endorses Sherbert and Yoder and other federal cases, and in the absence of an Establishment Clause objection it might well be interpreted to apply only to religious objectors. But if indeed such an interpretation would lead to a finding that RFRA is unconstitutional, wouldn't that cut pretty strongly in favor of avoiding that interpretation, and including secular philosophical objectors? The language isn't as clearly hostile to such an interpretation as the language in the draft law was in Welsh. And, as I noted, the other broad federal religious accommodation regime -- the Title VII religious accommodation provision -- has largely been read by lower courts as covering secular philosophical objectors as well as religious ones. Why wouldn't that, coupled with the avoidance of unconstitutionality canon, counsel in favor of a constitutionally permissible interpretation rather than a constitutionally impermissible one? Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Monday, December 02, 2013 8:11 AM To: Law Religion issues for Law Academics Subject: Re: The Establishment Clause, burden on others, the employer mandate, and the draft Eugene -- One question about this passage from your message: I take it that RFRA could likewise be interpreted to
Re: RFRA, the Establishment Clause, and saving constructions
I'm happy to let others answer the question of why Eugene's FRA would be crazy (and profoundly contrary to the statute Congress enacted in 1993). If Eugene is not persuaded, so be it. On Tue, Dec 3, 2013 at 10:57 AM, Volokh, Eugene vol...@law.ucla.edu wrote: Why is it so crazy? If, for instance, religious objectors to abortion get exemptions from having to participate in abortion, conscientious secular philosophical objectors would get such exemptions, too. That seems fair, and is indeed the rule both under various abortion-specific conscience clauses and, as I noted, as to Title VII -- which is narrower than RFRA in some ways, but broader in another very important way (since it applies to private employers). Nor has the interpretation of Title VII to which I point been seen by courts as removing the “religious” from “religious accommodation”; it just follows cases such as Welsh in treating deeply held conscientious philosophical beliefs similar to religious beliefs, something that would often have to be done in any event given the large variety of religious views, including nontheistic ones. As to “crackpot philosoph[ies],” “crackpot” religious objections -- including idiosyncratic ones -- are already covered under RFRA. Moreover, since the great majority of Americans consists of religious believers, most philosophical objections can be tied by at least some of the objectors to their religious beliefs, especially since all that is required is sincerity of belief and not the sharing of the belief by a larger group. Yet RFRA has not been terribly burdensome for the government, as best I can tell. Why would allowing similarly crackpot (or noncrackpot) secular philosophical objections to be covered suddenly cause much bigger problems? Eugene *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu *Sent:* Tuesday, December 03, 2013 7:45 AM *To:* Law Religion issues for Law Academics *Subject:* Re: RFRA, the Establishment Clause, and saving constructions The reason not to construe RFRA to apply to all secular philosophical objectors is that it's just plain crazy as a matter of policy. RFRA (which we would have to rename FRA after such a construction) applies to all of federal law. So this construction would give the holder of every crackpot philosophy about the limited role of government the legal leverage of requiring strict scrutiny as to why he or she should not be exempted from the reach of federal law. (Title VII is only about the employment relation, and the duty of accommodation is limited to de minimis burdens on employers. RFRA, or your FRA, would extend to everything.) So if construction to avoid constitutional doubt is what we are looking for, the only sensible move is to keep the R -- that is what Congress was doing in 1993 -- and to construe RFRA so as to avoid significant third party harms (in this case, to employees). On Mon, Dec 2, 2013 at 11:43 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I appreciate Jim’s argument, and also the arguments that the problem with the exemption isn’t discrimination in favor of religion, but rather the burden on third parties, regardless of whether the exemption is only for the religious. (I hope to respond to those arguments soon.) But as to the point below -- and assuming that a RFRA employer mandate exemption that covers secular conscientious objectors is as constitutional as the conscientious objector draft exemption -- wouldn’t the canon of interpreting statutes to avoid unconstitutionality (even setting aside constitutional “doubt”) be relevant here? It’s true that RFRA generally endorses *Sherbert *and *Yoder* and other federal cases, and in the absence of an Establishment Clause objection it might well be interpreted to apply only to religious objectors. But if indeed such an interpretation would lead to a finding that RFRA is unconstitutional, wouldn’t that cut pretty strongly in favor of avoiding that interpretation, and including secular philosophical objectors? The language isn’t as clearly hostile to such an interpretation as the language in the draft law was in *Welsh*. And, as I noted, the other broad federal religious accommodation regime -- the Title VII religious accommodation provision -- has largely been read by lower courts as covering secular philosophical objectors as well as religious ones. Why wouldn’t that, coupled with the avoidance of unconstitutionality canon, counsel in favor of a constitutionally permissible interpretation rather than a constitutionally impermissible one? Eugene *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske *Sent:* Monday, December 02, 2013 8:11 AM *To:* Law Religion issues for
Re: RFRA, the Establishment Clause, and saving constructions
Chip has cut to the chase (thank you) i would add that Eugene's reasoning further underscores how RFRA is in fact a non-ratified amendment to the First Amendment, as the Court pointed out in a footnote in Boerne. Advocates for it like Eugene cannot build in all the rules they like by borrowing from Supreme Court First Amendment doctrine but then say it is just a statute.As a statute, the plain language rule, the very title and the use of free exercise and the reference to religious cases means, yes, legislators are constrained to apply it only to religious believers. If its application to only the religious makes it a violation of the Establishment Clause, we have a constitutional violation. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 3, 2013, at 11:03 AM, Ira Lupu icl...@law.gwu.edu wrote: I'm happy to let others answer the question of why Eugene's FRA would be crazy (and profoundly contrary to the statute Congress enacted in 1993). If Eugene is not persuaded, so be it. On Tue, Dec 3, 2013 at 10:57 AM, Volokh, Eugene vol...@law.ucla.edu wrote: Why is it so crazy? If, for instance, religious objectors to abortion get exemptions from having to participate in abortion, conscientious secular philosophical objectors would get such exemptions, too. That seems fair, and is indeed the rule both under various abortion-specific conscience clauses and, as I noted, as to Title VII -- which is narrower than RFRA in some ways, but broader in another very important way (since it applies to private employers). Nor has the interpretation of Title VII to which I point been seen by courts as removing the “religious” from “religious accommodation”; it just follows cases such as Welsh in treating deeply held conscientious philosophical beliefs similar to religious beliefs, something that would often have to be done in any event given the large variety of religious views, including nontheistic ones. As to “crackpot philosoph[ies],” “crackpot” religious objections -- including idiosyncratic ones -- are already covered under RFRA. Moreover, since the great majority of Americans consists of religious believers, most philosophical objections can be tied by at least some of the objectors to their religious beliefs, especially since all that is required is sincerity of belief and not the sharing of the belief by a larger group. Yet RFRA has not been terribly burdensome for the government, as best I can tell. Why would allowing similarly crackpot (or noncrackpot) secular philosophical objections to be covered suddenly cause much bigger problems? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, December 03, 2013 7:45 AM To: Law Religion issues for Law Academics Subject: Re: RFRA, the Establishment Clause, and saving constructions The reason not to construe RFRA to apply to all secular philosophical objectors is that it's just plain crazy as a matter of policy. RFRA (which we would have to rename FRA after such a construction) applies to all of federal law. So this construction would give the holder of every crackpot philosophy about the limited role of government the legal leverage of requiring strict scrutiny as to why he or she should not be exempted from the reach of federal law. (Title VII is only about the employment relation, and the duty of accommodation is limited to de minimis burdens on employers. RFRA, or your FRA, would extend to everything.) So if construction to avoid constitutional doubt is what we are looking for, the only sensible move is to keep the R -- that is what Congress was doing in 1993 -- and to construe RFRA so as to avoid significant third party harms (in this case, to employees). On Mon, Dec 2, 2013 at 11:43 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I appreciate Jim’s argument, and also the arguments that the problem with the exemption isn’t discrimination in favor of religion, but rather the burden on third parties, regardless of whether the exemption is only for the religious. (I hope to respond to those arguments soon.) But as to the point below -- and assuming that a RFRA employer mandate exemption that covers secular conscientious objectors is as constitutional as the conscientious objector draft exemption -- wouldn’t the canon of interpreting statutes to avoid unconstitutionality (even setting aside constitutional “doubt”) be relevant here? It’s true that RFRA generally endorses Sherbert and Yoder and other federal cases, and in the absence of an Establishment Clause objection it might well be interpreted to apply only to religious objectors. But if indeed such an
Re: RFRA, the Establishment Clause, and saving constructions
So I take it the EEOC and the great majority of courts that have considered the meaning of “religion” in Title VII are wrong, too? Here are the citations I had when I last researched the matter in 1999: Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 137 n.4 (3d Cir. 1986) (The breadth of the 'exemption' afforded by Title VII is underscored by the fact that in defining religion, the EEOC has used the same broad definition as the Selective Service employs for conscientious objector purposes.); Nottelson v. Smith Steel Workers, 643 F.2d 445, 454 n.12 (7th Cir. 1981) (noting the same broad definition); Redmond v. GAF Corp., 574 F.2d 897, 901 n.12 (7th Cir. 1978) (We believe the proper test to be applied to the determination of what is 'religious' under § 2000e(j) can be derived from the Supreme Court decisions in [Welsh] and [United States v. Seeger, 380 U.S. 163 (1969)], i.e., (1) is the 'belief' for which protection is sought 'religious' in person's own scheme of things, and (2) is it 'sincerely held.'); Ali v. Southeast Neighborhood House, 519 F. Supp. 489, 490 (D.D.C. 1981) (Sincere beliefs, meaningful to the believer, need not be confined in either source or content to traditional or parochial concepts of religion. [Welsh.] See also [Seeger] for the definition of 'religious training and belief' as applied to a conscientious objector claim, which definition is no less appropriate here.); Wondzell v. Alaska Wood Prods., Inc., 583 P.2d 860, 866 n.12 (Alaska 1978) (In order to avoid the danger of unconstitutionality we would interpret [the state statute] to accord the same privileges to all sincere conscientious beliefs, whether or not they are accompanied by a belief in a supreme being.); Kolodziej v. Smith, 682 N.E.2d 604, 607 (Mass. 1997). Even in the face of this caselaw, and the argument that such preference for religion makes the statute unconstitutional, the Court can’t read RFRA the same way, but is instead compelled to read it in a way that makes it unconstitutional? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Tuesday, December 03, 2013 8:14 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: RFRA, the Establishment Clause, and saving constructions Chip has cut to the chase (thank you) i would add that Eugene's reasoning further underscores how RFRA is in fact a non-ratified amendment to the First Amendment, as the Court pointed out in a footnote in Boerne. Advocates for it like Eugene cannot build in all the rules they like by borrowing from Supreme Court First Amendment doctrine but then say it is just a statute.As a statute, the plain language rule, the very title and the use of free exercise and the reference to religious cases means, yes, legislators are constrained to apply it only to religious believers. If its application to only the religious makes it a violation of the Establishment Clause, we have a constitutional violation. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 3, 2013, at 11:03 AM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: I'm happy to let others answer the question of why Eugene's FRA would be crazy (and profoundly contrary to the statute Congress enacted in 1993). If Eugene is not persuaded, so be it. On Tue, Dec 3, 2013 at 10:57 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Why is it so crazy? If, for instance, religious objectors to abortion get exemptions from having to participate in abortion, conscientious secular philosophical objectors would get such exemptions, too. That seems fair, and is indeed the rule both under various abortion-specific conscience clauses and, as I noted, as to Title VII -- which is narrower than RFRA in some ways, but broader in another very important way (since it applies to private employers). Nor has the interpretation of Title VII to which I point been seen by courts as removing the “religious” from “religious accommodation”; it just follows cases such as Welsh in treating deeply held conscientious philosophical beliefs similar to religious beliefs, something that would often have to be done in any event given the large variety of religious views, including nontheistic ones. As to “crackpot philosoph[ies],” “crackpot” religious objections -- including idiosyncratic ones -- are already covered under RFRA. Moreover, since the great majority of Americans consists of religious believers, most philosophical objections can be tied by at least some of the objectors to their religious beliefs, especially since all that is required is sincerity of belief and not the sharing of the belief by a larger group. Yet RFRA has not been terribly burdensome for the government, as best I
Re: RFRA, the Establishment Clause, and saving constructions
Religion is in the title. The only testimony supporting it or RLUIPA was by religious folks. Congress had no basis to enact and NEVER would have enacted a law subjecting every law in the country to strict scrutiny triggered by every imaginable belief. That statute is actually irrational. It is a statute and its title is clear. If this is to be its interpretation repeal should not be far behind. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 3, 2013, at 11:22 AM, Volokh, Eugene vol...@law.ucla.edu wrote: So I take it the EEOC and the great majority of courts that have considered the meaning of “religion” in Title VII are wrong, too? Here are the citations I had when I last researched the matter in 1999: Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 137 n.4 (3d Cir. 1986) (The breadth of the 'exemption' afforded by Title VII is underscored by the fact that in defining religion, the EEOC has used the same broad definition as the Selective Service employs for conscientious objector purposes.); Nottelson v. Smith Steel Workers, 643 F.2d 445, 454 n.12 (7th Cir. 1981) (noting the same broad definition); Redmond v. GAF Corp., 574 F.2d 897, 901 n.12 (7th Cir. 1978) (We believe the proper test to be applied to the determination of what is 'religious' under § 2000e(j) can be derived from the Supreme Court decisions in [Welsh] and [United States v. Seeger, 380 U.S. 163 (1969)], i.e., (1) is the 'belief' for which protection is sought 'religious' in person's own scheme of things, and (2) is it 'sincerely held.'); Ali v. Southeast Neighborhood House, 519 F. Supp. 489, 490 (D.D.C. 1981) (Sincere beliefs, meaningful to the believer, need not be confined in either source or content to traditional or parochial concepts of religion. [Welsh.] See also [Seeger] for the definition of 'religious training and belief' as applied to a conscientious objector claim, which definition is no less appropriate here.); Wondzell v. Alaska Wood Prods., Inc., 583 P.2d 860, 866 n.12 (Alaska 1978) (In order to avoid the danger of unconstitutionality we would interpret [the state statute] to accord the same privileges to all sincere conscientious beliefs, whether or not they are accompanied by a belief in a supreme being.); Kolodziej v. Smith, 682 N.E.2d 604, 607 (Mass. 1997). Even in the face of this caselaw, and the argument that such preference for religion makes the statute unconstitutional, the Court can’t read RFRA the same way, but is instead compelled to read it in a way that makes it unconstitutional? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Tuesday, December 03, 2013 8:14 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: RFRA, the Establishment Clause, and saving constructions Chip has cut to the chase (thank you) i would add that Eugene's reasoning further underscores how RFRA is in fact a non-ratified amendment to the First Amendment, as the Court pointed out in a footnote in Boerne. Advocates for it like Eugene cannot build in all the rules they like by borrowing from Supreme Court First Amendment doctrine but then say it is just a statute.As a statute, the plain language rule, the very title and the use of free exercise and the reference to religious cases means, yes, legislators are constrained to apply it only to religious believers. If its application to only the religious makes it a violation of the Establishment Clause, we have a constitutional violation. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 3, 2013, at 11:03 AM, Ira Lupu icl...@law.gwu.edu wrote: I'm happy to let others answer the question of why Eugene's FRA would be crazy (and profoundly contrary to the statute Congress enacted in 1993). If Eugene is not persuaded, so be it. On Tue, Dec 3, 2013 at 10:57 AM, Volokh, Eugene vol...@law.ucla.edu wrote: Why is it so crazy? If, for instance, religious objectors to abortion get exemptions from having to participate in abortion, conscientious secular philosophical objectors would get such exemptions, too. That seems fair, and is indeed the rule both under various abortion-specific conscience clauses and, as I noted, as to Title VII -- which is narrower than RFRA in some ways, but broader in another very important way (since it applies to private employers). Nor has the interpretation of Title VII to which I point been seen by courts as removing the “religious” from “religious accommodation”; it just follows cases such as Welsh in treating deeply held conscientious philosophical beliefs similar to religious beliefs, something that
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 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 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
Re: RFRA, the Establishment Clause, and saving constructions
Eugene writes: Even in the face of this caselaw, and the argument that such preference for religion makes the statute unconstitutional, the Court can’t read RFRA the same way [as courts have read the title VII and conscientious objector statutes], but is instead compelled to read it in a way that makes it unconstitutional? No, the argument is not that the preference for religion makes it unconstitutional -- Cutter already rejected that argument -- but that if RFRA were construed to allow religious accommodations *that imposed significant burdens on third parties*, that would raise a serious constitutional question. Eugene, you're right that *expanding* RFRA to include nonreligious objections would eliminate that particular constitutional concern -- ironically, by expanding the harm to third parties. But for the reasons Chip has offered -- plus the glaring point that the one thing everyone agrees on is that RFRA was intended to codify the FEC doctrine of the Sherbert-through-Hernandez quarter-century, a doctrine that did not recognize nonreligious claims for exemption -- that reading of RFRA is fairly untenable (in contrast to the conscientious objector and title VII accommodations) . . . and would, indeed, only exacerbate the employee-burden problems. The much, much more natural way to avoid the third-party burden constitutional concerns is simply to construe RFRA to provide that avoiding significant third-party harms is a compelling government interest, under the terms of RFRA itself. Indeed, doubly compelling -- the government has an interest both on the merits in not denying this particular category of women a social benefit to which virtually all other women are entitled, *and *in avoiding serious EC concerns. On Tue, Dec 3, 2013 at 11:22 AM, Volokh, Eugene vol...@law.ucla.edu wrote: So I take it the EEOC and the great majority of courts that have considered the meaning of “religion” in Title VII are wrong, too? Here are the citations I had when I last researched the matter in 1999: Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 137 n.4 (3d Cir. 1986) (The breadth of the 'exemption' afforded by Title VII is underscored by the fact that in defining religion, the EEOC has used the same broad definition as the Selective Service employs for conscientious objector purposes.); Nottelson v. Smith Steel Workers, 643 F.2d 445, 454 n.12 (7th Cir. 1981) (noting the same broad definition); Redmond v. GAF Corp., 574 F.2d 897, 901 n.12 (7th Cir. 1978) (We believe the proper test to be applied to the determination of what is 'religious' under § 2000e(j) can be derived from the Supreme Court decisions in [Welsh] and [United States v. Seeger, 380 U.S. 163 (1969)], i.e., (1) is the 'belief' for which protection is sought 'religious' in person's own scheme of things, and (2) is it 'sincerely held.'); Ali v. Southeast Neighborhood House, 519 F. Supp. 489, 490 (D.D.C. 1981) (Sincere beliefs, meaningful to the believer, need not be confined in either source or content to traditional or parochial concepts of religion. [Welsh.] See also [Seeger] for the definition of 'religious training and belief' as applied to a conscientious objector claim, which definition is no less appropriate here.); Wondzell v. Alaska Wood Prods., Inc., 583 P.2d 860, 866 n.12 (Alaska 1978) (In order to avoid the danger of unconstitutionality we would interpret [the state statute] to accord the same privileges to all sincere conscientious beliefs, whether or not they are accompanied by a belief in a supreme being.); Kolodziej v. Smith, 682 N.E.2d 604, 607 (Mass. 1997). Even in the face of this caselaw, and the argument that such preference for religion makes the statute unconstitutional, the Court can’t read RFRA the same way, but is instead compelled to read it in a way that makes it unconstitutional? Eugene *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marci Hamilton *Sent:* Tuesday, December 03, 2013 8:14 AM *To:* Law Religion issues for Law Academics *Cc:* Law Religion issues for Law Academics *Subject:* Re: RFRA, the Establishment Clause, and saving constructions Chip has cut to the chase (thank you) i would add that Eugene's reasoning further underscores how RFRA is in fact a non-ratified amendment to the First Amendment, as the Court pointed out in a footnote in Boerne. Advocates for it like Eugene cannot build in all the rules they like by borrowing from Supreme Court First Amendment doctrine but then say it is just a statute.As a statute, the plain language rule, the very title and the use of free exercise and the reference to religious cases means, yes, legislators are constrained to apply it only to religious believers. If its application to only the religious makes it a violation of the Establishment Clause, we have a constitutional violation. Marci A. Hamilton Verkuil Chair in
Re: Warner v. City of Boca Raton
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.commailto:phorw...@hotmail.com Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Date: Tuesday, December 3, 2013 11:38 AM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto: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.commailto: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.edumailto: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
Re: RFRA, the Establishment Clause, and saving constructions
Two additional thoughts: 1. While the Court certainly could take the approach Eugene suggests, does anyone think the Court will do so? In light of the fact that the Court recently and unanimously embraced the position in Hosanna-Tabor that religion gets special treatment under the Constitution, and also unanimously upheld RLUIPA against a facial challenge with the observation that [r]eligious accommodations ... need not come packaged with benefits to secular entities, I find it very difficult to imagine the Court now interpreting the Religious Freedom Restoration Act as not providing religion with special treatment. And I tend to doubt that the current Court will be at all persuaded by a smattering of relatively old lower court decisions relying upon the selective service cases to interpret Title VII. 2. As Marty notes, the argument that Fred and others are making is not that preference for religion for religion makes the statute unconstitutional in general, but rather, that specific applications of RFRA that impose significant burdens on third parties may be unconstitutional. Cutter explicitly contemplates such challenges under RLUIPA, and the Court gave no indication that it would reinterpret RLUIPA in such cases to package religious accommodations with secular accommodations in order to deflect as applied challenges. - Jim On Tue, Dec 3, 2013 at 8:39 AM, Marty Lederman lederman.ma...@gmail.comwrote: Eugene writes: Even in the face of this caselaw, and the argument that such preference for religion makes the statute unconstitutional, the Court can’t read RFRA the same way [as courts have read the title VII and conscientious objector statutes], but is instead compelled to read it in a way that makes it unconstitutional? No, the argument is not that the preference for religion makes it unconstitutional -- Cutter already rejected that argument -- but that if RFRA were construed to allow religious accommodations *that imposed significant burdens on third parties*, that would raise a serious constitutional question. Eugene, you're right that *expanding* RFRA to include nonreligious objections would eliminate that particular constitutional concern -- ironically, by expanding the harm to third parties. But for the reasons Chip has offered -- plus the glaring point that the one thing everyone agrees on is that RFRA was intended to codify the FEC doctrine of the Sherbert-through-Hernandez quarter-century, a doctrine that did not recognize nonreligious claims for exemption -- that reading of RFRA is fairly untenable (in contrast to the conscientious objector and title VII accommodations) . . . and would, indeed, only exacerbate the employee-burden problems. The much, much more natural way to avoid the third-party burden constitutional concerns is simply to construe RFRA to provide that avoiding significant third-party harms is a compelling government interest, under the terms of RFRA itself. Indeed, doubly compelling -- the government has an interest both on the merits in not denying this particular category of women a social benefit to which virtually all other women are entitled, *and *in avoiding serious EC concerns. On Tue, Dec 3, 2013 at 11:22 AM, Volokh, Eugene vol...@law.ucla.eduwrote: So I take it the EEOC and the great majority of courts that have considered the meaning of “religion” in Title VII are wrong, too? Here are the citations I had when I last researched the matter in 1999: Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 137 n.4 (3d Cir. 1986) (The breadth of the 'exemption' afforded by Title VII is underscored by the fact that in defining religion, the EEOC has used the same broad definition as the Selective Service employs for conscientious objector purposes.); Nottelson v. Smith Steel Workers, 643 F.2d 445, 454 n.12 (7th Cir. 1981) (noting the same broad definition); Redmond v. GAF Corp., 574 F.2d 897, 901 n.12 (7th Cir. 1978) (We believe the proper test to be applied to the determination of what is 'religious' under § 2000e(j) can be derived from the Supreme Court decisions in [Welsh] and [United States v. Seeger, 380 U.S. 163 (1969)], i.e., (1) is the 'belief' for which protection is sought 'religious' in person's own scheme of things, and (2) is it 'sincerely held.'); Ali v. Southeast Neighborhood House, 519 F. Supp. 489, 490 (D.D.C. 1981) (Sincere beliefs, meaningful to the believer, need not be confined in either source or content to traditional or parochial concepts of religion. [Welsh.] See also [Seeger] for the definition of 'religious training and belief' as applied to a conscientious objector claim, which definition is no less appropriate here.); Wondzell v. Alaska Wood Prods., Inc., 583 P.2d 860, 866 n.12 (Alaska 1978) (In order to avoid the danger of unconstitutionality we would interpret [the state statute] to accord the same privileges to all sincere conscientious beliefs, whether or not they
RE: RFRA, the Establishment Clause, and saving constructions
Marty's post focuses the discussion particularly well here. However, if we construe RFRA to provide that avoiding significant third-party harms is a compelling state interest, we are still left with the least restrictive means part of rigorous review. How does the least restrictive means analysis fit into the picture of avoiding constitutional concerns? In Catholic Charities v. Superior Court, the California Supreme Court addressed a similar issue to the contraceptive mandate question currently before the U.S. Supreme Court - but under California constitutional law. The Court rejected the idea that the government taking over the cost of providing benefits to employees of exempt organizations could be a less restrictive alternative. Indeed, it's language seemed to suggest that no less restrictive alternative would be accepted that required any expenditure of government funds. Do list members agree with that analysis? If less restrictive alternatives (that is alternatives that are less burdensome to religious exercise) are available to the government but require the expenditure of funds, must that alternative be rejected out of hand as irrelevant to the application of strict scrutiny review? Does this analysis apply only to RFRA or to strict scrutiny review more generally? Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, December 03, 2013 8:40 AM To: Law Religion issues for Law Academics Subject: Re: RFRA, the Establishment Clause, and saving constructions Eugene writes: Even in the face of this caselaw, and the argument that such preference for religion makes the statute unconstitutional, the Court can't read RFRA the same way [as courts have read the title VII and conscientious objector statutes], but is instead compelled to read it in a way that makes it unconstitutional? No, the argument is not that the preference for religion makes it unconstitutional -- Cutter already rejected that argument -- but that if RFRA were construed to allow religious accommodations that imposed significant burdens on third parties, that would raise a serious constitutional question. Eugene, you're right that expanding RFRA to include nonreligious objections would eliminate that particular constitutional concern -- ironically, by expanding the harm to third parties. But for the reasons Chip has offered -- plus the glaring point that the one thing everyone agrees on is that RFRA was intended to codify the FEC doctrine of the Sherbert-through-Hernandez quarter-century, a doctrine that did not recognize nonreligious claims for exemption -- that reading of RFRA is fairly untenable (in contrast to the conscientious objector and title VII accommodations) . . . and would, indeed, only exacerbate the employee-burden problems. The much, much more natural way to avoid the third-party burden constitutional concerns is simply to construe RFRA to provide that avoiding significant third-party harms is a compelling government interest, under the terms of RFRA itself. Indeed, doubly compelling -- the government has an interest both on the merits in not denying this particular category of women a social benefit to which virtually all other women are entitled, and in avoiding serious EC concerns. ___ 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.
Re: Warner v. City of Boca Raton
Like Doug, I think the Florida supreme court misconstrued FRFRA (more full disclosure -- I chaired the ACLUFL legal panel that authorized Jim Green and Doug to represent Warner on behalf of the ACLUFL). But it remains the case that the court devoted several critical paragraphs of its opinion to the meaning of the word substantial, and relied on its definition of substantial to decide the case. I offered Warner in response to a specific question -- whether any court had regarded the presence or absence of the word substantial in a state RFRA as significant -- not whether the court that did so construed it properly. So it seems to me reasonable to suggest that the inclusion of the word substantial within the statutory text does do some work, even if, as happens here, we agree that Warner does not accurately capture the work that it does. Perhaps substantial was meant only to invoke a sincerity inquiry into the objector's claim that the burden was substantial, but that still seems to effectively edit the word our of the statute. Construing the statute to leave the determination of what is substantial entirely to the subjective assessment of the objector, subject only to a sincerity determination, means that in every case in which the objector invokes a RFRA, the court must either find the objection insincere or apply strict scrutiny. It would be easy enough to write such a statute, but why in writing it would one include the word substantial? Mike Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Quoting Douglas Laycock dlayc...@virginia.edu: 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 courts 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 courts 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:
Burdens on others -- compelling interest vs. Establishment Clause
I sympathize with the argument that there is a compelling government interest in preventing costs on third parties, and that this may justify rejecting the RFRA claim. I think the doctrine here is especially uncertain, but there's much to be said for that argument as a reason for rejecting Hobby Lobby's claim. But the Establishment Clause argument would go further. Among other things, it would mean that the Administration's accommodation for religious nonprofits is itself unconstitutional. (As I read Gedicks Van Tassell, that is indeed their position.) Do list members who embrace the Establishment Clause argument agree with that result? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, December 03, 2013 8:40 AM To: Law Religion issues for Law Academics Subject: Re: RFRA, the Establishment Clause, and saving constructions Eugene writes: Even in the face of this caselaw, and the argument that such preference for religion makes the statute unconstitutional, the Court can't read RFRA the same way [as courts have read the title VII and conscientious objector statutes], but is instead compelled to read it in a way that makes it unconstitutional? No, the argument is not that the preference for religion makes it unconstitutional -- Cutter already rejected that argument -- but that if RFRA were construed to allow religious accommodations that imposed significant burdens on third parties, that would raise a serious constitutional question. Eugene, you're right that expanding RFRA to include nonreligious objections would eliminate that particular constitutional concern -- ironically, by expanding the harm to third parties. But for the reasons Chip has offered -- plus the glaring point that the one thing everyone agrees on is that RFRA was intended to codify the FEC doctrine of the Sherbert-through-Hernandez quarter-century, a doctrine that did not recognize nonreligious claims for exemption -- that reading of RFRA is fairly untenable (in contrast to the conscientious objector and title VII accommodations) . . . and would, indeed, only exacerbate the employee-burden problems. The much, much more natural way to avoid the third-party burden constitutional concerns is simply to construe RFRA to provide that avoiding significant third-party harms is a compelling government interest, under the terms of RFRA itself. Indeed, doubly compelling -- the government has an interest both on the merits in not denying this particular category of women a social benefit to which virtually all other women are entitled, and in avoiding serious EC concerns. On Tue, Dec 3, 2013 at 11:22 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: So I take it the EEOC and the great majority of courts that have considered the meaning of religion in Title VII are wrong, too? Here are the citations I had when I last researched the matter in 1999: Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 137 n.4 (3d Cir. 1986) (The breadth of the 'exemption' afforded by Title VII is underscored by the fact that in defining religion, the EEOC has used the same broad definition as the Selective Service employs for conscientious objector purposes.); Nottelson v. Smith Steel Workers, 643 F.2d 445, 454 n.12 (7th Cir. 1981) (noting the same broad definition); Redmond v. GAF Corp., 574 F.2d 897, 901 n.12 (7th Cir. 1978) (We believe the proper test to be applied to the determination of what is 'religious' under § 2000e(j) can be derived from the Supreme Court decisions in [Welsh] and [United States v. Seeger, 380 U.S. 163 (1969)], i.e., (1) is the 'belief' for which protection is sought 'religious' in person's own scheme of things, and (2) is it 'sincerely held.'); Ali v. Southeast Neighborhood House, 519 F. Supp. 489, 490 (D.D.C. 1981) (Sincere beliefs, meaningful to the believer, need not be confined in either source or content to traditional or parochial concepts of religion. [Welsh.] See also [Seeger] for the definition of 'religious training and belief' as applied to a conscientious objector claim, which definition is no less appropriate here.); Wondzell v. Alaska Wood Prods., Inc., 583 P.2d 860, 866 n.12 (Alaska 1978) (In order to avoid the danger of unconstitutionality we would interpret [the state statute] to accord the same privileges to all sincere conscientious beliefs, whether or not they are accompanied by a belief in a supreme being.); Kolodziej v. Smith, 682 N.E.2d 604, 607 (Mass. 1997). Even in the face of this caselaw, and the argument that such preference for religion makes the statute unconstitutional, the Court can't read RFRA the same way, but is instead compelled to read it in a way that makes it unconstitutional? Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu
Re: Burdens on others -- compelling interest vs. Establishment Clause
Which HHS accommodation? The first -- exempting churches altogether -- in theory does not impose as much of a burden on their employees, because those entities already have a right (under title VII) to prefer coreligionists and insist that they comply with religious obligations -- that is to say, the employees there voluntarily took the jobs knowing (probably intending) that they would have to abide by church tenets. The second HHS accommodation, for other religious nonprofits, does not harm the female employees, because they continue to receive cost-free contraceptive coverage, albeit from the insurer rather than from the employer. On Tue, Dec 3, 2013 at 6:30 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I sympathize with the argument that there is a compelling government interest in preventing costs on third parties, and that this may justify rejecting the RFRA claim. I think the doctrine here is especially uncertain, but there’s much to be said for that argument as a reason for rejecting Hobby Lobby’s claim. But the Establishment Clause argument would go further. Among other things, it would mean that the Administration’s accommodation for religious nonprofits is itself unconstitutional. (As I read Gedicks Van Tassell, that is indeed their position.) Do list members who embrace the Establishment Clause argument agree with that result? Eugene *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Tuesday, December 03, 2013 8:40 AM *To:* Law Religion issues for Law Academics *Subject:* Re: RFRA, the Establishment Clause, and saving constructions Eugene writes: Even in the face of this caselaw, and the argument that such preference for religion makes the statute unconstitutional, the Court can’t read RFRA the same way [as courts have read the title VII and conscientious objector statutes], but is instead compelled to read it in a way that makes it unconstitutional? No, the argument is not that the preference for religion makes it unconstitutional -- Cutter already rejected that argument -- but that if RFRA were construed to allow religious accommodations *that imposed significant burdens on third parties*, that would raise a serious constitutional question. Eugene, you're right that *expanding* RFRA to include nonreligious objections would eliminate that particular constitutional concern -- ironically, by expanding the harm to third parties. But for the reasons Chip has offered -- plus the glaring point that the one thing everyone agrees on is that RFRA was intended to codify the FEC doctrine of the Sherbert-through-Hernandez quarter-century, a doctrine that did not recognize nonreligious claims for exemption -- that reading of RFRA is fairly untenable (in contrast to the conscientious objector and title VII accommodations) . . . and would, indeed, only exacerbate the employee-burden problems. The much, much more natural way to avoid the third-party burden constitutional concerns is simply to construe RFRA to provide that avoiding significant third-party harms is a compelling government interest, under the terms of RFRA itself. Indeed, doubly compelling -- the government has an interest both on the merits in not denying this particular category of women a social benefit to which virtually all other women are entitled, *and *in avoiding serious EC concerns. On Tue, Dec 3, 2013 at 11:22 AM, Volokh, Eugene vol...@law.ucla.edu wrote: So I take it the EEOC and the great majority of courts that have considered the meaning of “religion” in Title VII are wrong, too? Here are the citations I had when I last researched the matter in 1999: Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 137 n.4 (3d Cir. 1986) (The breadth of the 'exemption' afforded by Title VII is underscored by the fact that in defining religion, the EEOC has used the same broad definition as the Selective Service employs for conscientious objector purposes.); Nottelson v. Smith Steel Workers, 643 F.2d 445, 454 n.12 (7th Cir. 1981) (noting the same broad definition); Redmond v. GAF Corp., 574 F.2d 897, 901 n.12 (7th Cir. 1978) (We believe the proper test to be applied to the determination of what is 'religious' under § 2000e(j) can be derived from the Supreme Court decisions in [Welsh] and [United States v. Seeger, 380 U.S. 163 (1969)], i.e., (1) is the 'belief' for which protection is sought 'religious' in person's own scheme of things, and (2) is it 'sincerely held.'); Ali v. Southeast Neighborhood House, 519 F. Supp. 489, 490 (D.D.C. 1981) (Sincere beliefs, meaningful to the believer, need not be confined in either source or content to traditional or parochial concepts of religion. [Welsh.] See also [Seeger] for the definition of 'religious training and belief' as applied to a conscientious objector claim, which
The employer mandate and the draft
I read the Gedicks Van Tassell article, which I found interesting but ultimately not quite persuasive as to the draft. According to http://www.swarthmore.edu/library/peace/conscientiousobjection/co%20website/pages/HistoryNew.htm, there were 170,000 conscientious objector deferments awarded during the Vietnam War. That means that likely about 170,000 people who otherwise wouldn't have been called up were indeed eligible to be called up instead, and presumably (I don't quite know how the numbers worked) at least tens of thousands of those were indeed called up. That surely was a burden on third parties created as a result of accommodating objectors' religious beliefs. To be sure, at the time the conscientious objector deferment was given, the particular person who had to serve in the objectors' place couldn't be easily identified. And I agree that the law does sometimes treat burdens on easily identifiable third parties differently from burdens on harder-to-identify third parties. But is such a distinction really mandated by the Establishment Clause? Is it really the case that the government is free to impose such a massive burden -- conscription for years, the possibility of having to kill, and the possibility of dying -- on hard-to-identify but indubitably real third parties (tens of thousands of them), but the Establishment Clause blocks the government from imposing a several-hundred-dollar-per-year burden on more readily identifiable employees? That seems quite odd. Nor does the distinction urged by Gedicks Van Tassell -- that the draft exemption wouldn't be a factor in the decision of nonpacifists to comply with or evade the draft, while the employer mandate exemption might be a factor in a person's decision whether to work for Hobby Lobby -- strike me as constitutionally significant, especially when the question is substantiality of burden. Perhaps nonpacifists had to comply with the draft in any event, because they'd go to prison otherwise. But if the essence of the harm is burdening non-beneficiar[ies], that legal compulsion doesn't at all diminish the burden on the tens of thousands of nonpacifists who had to serve in the conscientious objectors' stead. I realize that there's a separate argument that the conscientious objector exemption was only upheld because it was interpreted to cover philosophical objectors, and that such an interpretation is unavailable for the employer mandate (though I'm still not persuaded by that interpretation argument). But my point here is simply that the burden on the hard-to-identify vs. burden on the easy-to-identify distinction, as well as the Gedicks Van Tassell distinction, seem unsound. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman Sent: Monday, December 02, 2013 12:38 PM To: Law Religion issues for Law Academics Subject: Re: The Establishment Clause, burden on others, the employer mandate, and the draft Alan, I think you're right that the problem of burdening non-beneficiary employees could be resolved by the government providing them with full coverage (as I think Nelson Tebbe said in an earlier post). But until that happens, those employees have a claim in this litigation that hasn't yet been fully presented -- and one that, as Gedicks argues, constrains permissive accommodations (including RFRA). I should add that government coverage for non-beneficiaries might not solve all the possible Establishment Clause problems with a religious exemption. If there are non-religious employers who object to covering, e.g., abortifacients, they might claim that a religious exemption treats them unfairly. And depending on how the costs sort out, I suppose it's possible that there might be complaints from non-exempted employers (as in Texas Monthly). Micah On Dec 2, 2013, at 2:49 PM, Alan Brownstein wrote: Micah, if the issue is diffusing the burden so that it doesn't fall on a limited class of identifiable individuals, why isn't that problem solved by the government taking over the task of providing insurance coverage for the employees of exempt organizations. Isn't the government a sufficiently effective cost-spreader to resolve this concern? Alan Eugene's suggestion that the religious exemption from the contraception mandate be analogized to the draft protester cases is anticipated by Gedicks and Van Tassell in their article, RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2328516). Gedicks and Van Tassel argue that the burden of the exemption is not material because it would not affect the decision-making of non-pacificists in considering whether to participate in the draft. That is because the burden is minor and
RE: Burdens on others -- compelling interest vs. Establishment Clause
Sorry, I should have limited this to churches, many of whom do not actually prefer coreligionists, even if Title VII lets them do so. (I erred in saying that Gedicks Van Tassell would hold this unconstitutional.) Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, December 03, 2013 3:44 PM To: Law Religion issues for Law Academics Subject: Re: Burdens on others -- compelling interest vs. Establishment Clause Which HHS accommodation? The first -- exempting churches altogether -- in theory does not impose as much of a burden on their employees, because those entities already have a right (under title VII) to prefer coreligionists and insist that they comply with religious obligations -- that is to say, the employees there voluntarily took the jobs knowing (probably intending) that they would have to abide by church tenets. The second HHS accommodation, for other religious nonprofits, does not harm the female employees, because they continue to receive cost-free contraceptive coverage, albeit from the insurer rather than from the employer. On Tue, Dec 3, 2013 at 6:30 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I sympathize with the argument that there is a compelling government interest in preventing costs on third parties, and that this may justify rejecting the RFRA claim. I think the doctrine here is especially uncertain, but there's much to be said for that argument as a reason for rejecting Hobby Lobby's claim. But the Establishment Clause argument would go further. Among other things, it would mean that the Administration's accommodation for religious nonprofits is itself unconstitutional. (As I read Gedicks Van Tassell, that is indeed their position.) Do list members who embrace the Establishment Clause argument agree with that result? Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, December 03, 2013 8:40 AM To: Law Religion issues for Law Academics Subject: Re: RFRA, the Establishment Clause, and saving constructions Eugene writes: Even in the face of this caselaw, and the argument that such preference for religion makes the statute unconstitutional, the Court can't read RFRA the same way [as courts have read the title VII and conscientious objector statutes], but is instead compelled to read it in a way that makes it unconstitutional? No, the argument is not that the preference for religion makes it unconstitutional -- Cutter already rejected that argument -- but that if RFRA were construed to allow religious accommodations that imposed significant burdens on third parties, that would raise a serious constitutional question. Eugene, you're right that expanding RFRA to include nonreligious objections would eliminate that particular constitutional concern -- ironically, by expanding the harm to third parties. But for the reasons Chip has offered -- plus the glaring point that the one thing everyone agrees on is that RFRA was intended to codify the FEC doctrine of the Sherbert-through-Hernandez quarter-century, a doctrine that did not recognize nonreligious claims for exemption -- that reading of RFRA is fairly untenable (in contrast to the conscientious objector and title VII accommodations) . . . and would, indeed, only exacerbate the employee-burden problems. The much, much more natural way to avoid the third-party burden constitutional concerns is simply to construe RFRA to provide that avoiding significant third-party harms is a compelling government interest, under the terms of RFRA itself. Indeed, doubly compelling -- the government has an interest both on the merits in not denying this particular category of women a social benefit to which virtually all other women are entitled, and in avoiding serious EC concerns. On Tue, Dec 3, 2013 at 11:22 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: So I take it the EEOC and the great majority of courts that have considered the meaning of religion in Title VII are wrong, too? Here are the citations I had when I last researched the matter in 1999: Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 137 n.4 (3d Cir. 1986) (The breadth of the 'exemption' afforded by Title VII is underscored by the fact that in defining religion, the EEOC has used the same broad definition as the Selective Service employs for conscientious objector purposes.); Nottelson v. Smith Steel Workers, 643 F.2d 445, 454 n.12 (7th Cir. 1981) (noting the same broad definition); Redmond v. GAF Corp., 574 F.2d 897, 901 n.12 (7th Cir. 1978) (We believe the proper test to be applied to the determination of what is
Rights to injure others
My apologies for the delay responding to Alan’s point. Alan raises an excellent argument, but my tentative thinking is that the force of the assault/theft hypotheticals stems precisely from the fact that they involve injury to long-recognized common-law private rights. I’m not sure even that should make such hypotheticals into violations of the Establishment Clause, but if it does, I think it’s the longstanding tradition of legally protecting the rights -- even if the police don’t always enforce the law -- that is doing the work. Indeed, I expect that the same would apply if the law allowed people to commandeer third parties’ property without compensation, and outside the traditional limitations on property rights. (I recall Alan’s excellent Property Rights Genie article, which suggested that such laws may indeed be unconstitutional deprivations of property.) Laws allowing people to assault third parties outside the traditional situations (such as self-defense) would, I think, be shocking regardless of whether the assaults were religiously motivated; it’s hard to point to specific cases considering this, though, since such laws are fortunately so rare. (The closest analogy I could think was spousal rape laws, which were in some cases struck down even despite their history, though that is clouded by the Equal Protection Clause sex discrimination issue.) In any case, I just thought I owed Alan an answer to his post. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Wednesday, November 27, 2013 11:38 AM To: Law Religion issues for Law Academics Subject: RE: Contraception Mandate I have a lot of trouble with the argument that religious accommodations that effectively deny third parties government-mandated benefits to which they are otherwise entitled are not subject to Establishment Clause review. It is true that the government doesn’t have to protect anyone against employment discrimination and can decide how far it wants to extend such protection. It is also true that the government isn’t required to protect all people all the time against crimes like assault and battery (See Deshaney) or torts like conversion (See Flagg Brothers). But surely an exemption that allows religious individuals to assault third parties or commandeer their property violates the Establishment Clause. I agree that the accommodation upheld in Amos burdened the employee who lost his job. I think the Court’s cases recognizing some Establishment Clause limit on accommodations involve some implied balancing. Implied balancing is necessary to determine whether an accommodation goes too far in burdening third parties and whether the accommodation does not impermissibly favor certain faiths over others. That’s one of the reasons I think Smith is unpersuasive when it rejects free exercise claims against neutral laws of general applicability in order to avoid subjective judicial balancing. When the job of granting accommodations is assigned to the legislature, court’s will have to engage in the same kind of balancing that they avoid in Free Exercise cases under Smith when they adjudicate Establishment Clause challenges to the accommodation because it allegedly impermissibly burdens third parties or favors certain religions over others. Alan From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, November 26, 2013 9:43 PM To: Law Religion issues for Law Academics Subject: RE: Contraception Mandate I do indeed think so. The government doesn’t have to extend a government-mandated benefit to everyone; Title VII protections, for instance, aren’t extended to employees of small businesses, and are otherwise limited in various ways. Indeed, a law can’t discriminate based on a beneficiary’s religion in extending such a benefit (except perhaps when the benefit is itself a religious accommodation). But I don’t think that there should be an Establishment Clause problem with a law saying that, for instance, those tenants who want to rent from religious objector landlords don’t get the protections of marital status discrimination law, those employees who work for religious vegetarian landlords don’t get the protections of the meaty lunch program, or those employees who work for employers who object to paying for contraceptives or abortifacents don’t get the protections of the relevant health care insurance program. As to Cutter, the only way I can see of reconciling it with Amos is by not reading Thornton too broadly. The accommodation in Amos did not, after all, at all “take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries,” if “burdens” is viewed as
Re: The Establishment Clause, burden on others, the employer mandate, and the draft
Alan, Thanks for this response, and sorry for not replying sooner. I have been thinking about it since yesterday. If I understand correctly (and I'm not sure about this), you're saying that the government would violate RFRA if it did not act to avoid an as-applied Establishment Clause challenge by providing coverage to non-beneficiaries. But it is hard for me to see the Establishment Clause violation as stemming from anything other than RFRA. Providing a contraception mandate without government coverage for employees does not lead to a constitutional violation. Only if RFRA is construed to require a religious exemption do we reach the constitutional problem. As Marty suggested earlier today, one way to avoid that problem is by incorporating Establishment Clause concerns into the compelling interest analysis. But even if we don't do that, I don't think that government actions that fail to avoid potential Establishment Clause harms are themselves violations of RFRA. In Hobby Lobby, RFRA does not require the government to respond to a constitutional defect by compensating the non-beneficiaries. Consider an example: Suppose that the religious employers win their suit in Hobby Lobby. They get a religious exemption under RFRA from the contraception mandate. Suppose further (following Eugene's recent argument) that some non-religious employers seek a comparable exemption -- say, because they have moral objections to facilitating the use of abortifacients. These non-religious employers claim that RFRA violates the Establishment Clause because it provides exemptions to religious employers but not to them. Suppose for the sake of argument that a court agrees (perhaps following Justice Harlan's view in Welsh). Now the government has a choice: either eliminate the exemption or broaden it to include non-religious objectors. If I understand your view correctly, the government would have to expand the exemption. If it eliminated the exemption, it would burden religious believers in violation of RFRA. The upshot is that it would be a violation of RFRA to read RFRA in a way that excludes non-religious claims. And that seems like a strange outcome. I don't think we have to read RFRA to demand this kind of recursivity -- either in my example or in other cases (say, in Caldor). As Cutter recognizes, the Establishment Clause imposes limits, and those limits can be incorporated into RFRA through compelling interest analysis. But even if they are not (as apparently is the case in the Hobby Lobby litigation), the government can respect those limits as independent grounds for rejecting harms to non-beneficiaries. Micah On Dec 2, 2013, at 4:48 PM, Alan Brownstein aebrownst...@ucdavis.edu wrote: Micah, I guess the question for me is whether the fact that the government has not offered to provide coverage to the employees of exempt organizations constrains permissive accommodations under a statute like RFRA. If the provision of coverage to the employees of exempt organizations is a less restrictive alternative that adequately furthers the government’s asserted compelling interests, why doesn’t that lead to the conclusion that the government has violated RFRA. Or to put it another way, why should the government’s failure to adopt a less restrictive alternative be the basis for denying the religious objector’s claim under RFRA? If we apply strict scrutiny in a free speech case and the government’s compelling state interest is to avoid unruly behavior by the audience if an unpopular speaker is permitted to speak, the government can’t fortify its argument by refusing to provide adequate police to preserve order during the event. Government providing police to preserve order is a less burdensome alternative than silencing the speaker whether the government actually provides police services or not. I assume one response to this argument would be that the Establishment Clause prohibits the burdening of third parties – but that leads to the question of which government action violates the Establishment Clause. Should we view the government’s compliance with RFRA as the Establishment Clause violation or the government’s imposition of the mandate (which created a duty to exempt religious objectors under existing law – e.g. RFRA) without providing for coverage of employees working for exempt organizations as the problem. (This last argument is very tentative. I just thought of it and will withdraw it if it makes no sense.) Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman Sent: Monday, December 02, 2013 12:38 PM To: Law Religion issues for Law Academics Subject: Re: The Establishment Clause, burden on others, the employer mandate, and the draft Alan, I think you're right that the problem of burdening non-beneficiary employees could be
Re: Warner v. City of Boca Raton
I don't think that substantial burden merely means sincerity. As I said, I think that burden and compelling interest inevitably become a balancing test, so that the degree of substantiality matters whether the statute says so or not. I did mean to say that the Florida court's interpretation is so implausible that I cannot believe the word substantially -- or any other part of the statutory text -- did the work. I think that the decision could only have resulted from hostility to the statute as drafted, and that substantially was just the most convenient word to seize upon. Had it been omitted, they would have found another way. The way they found made no textual sense, and any alternative would not have had to make textual sense either. On Tue, 03 Dec 2013 13:27:07 -0500 Michael Masinter masin...@nova.edu wrote: Like Doug, I think the Florida supreme court misconstrued FRFRA (more full disclosure -- I chaired the ACLUFL legal panel that authorized Jim Green and Doug to represent Warner on behalf of the ACLUFL). But it remains the case that the court devoted several critical paragraphs of its opinion to the meaning of the word substantial, and relied on its definition of substantial to decide the case. I offered Warner in response to a specific question -- whether any court had regarded the presence or absence of the word substantial in a state RFRA as significant -- not whether the court that did so construed it properly. So it seems to me reasonable to suggest that the inclusion of the word substantial within the statutory text does do some work, even if, as happens here, we agree that Warner does not accurately capture the work that it does. Perhaps substantial was meant only to invoke a sincerity inquiry into the objector's claim that the burden was substantial, but that still seems to effectively edit the word our of the statute. Construing the statute to leave the determination of what is substantial entirely to the subjective assessment of the objector, subject only to a sincerity determination, means that in every case in which the objector invokes a RFRA, the court must either find the objection insincere or apply strict scrutiny. It would be easy enough to write such a statute, but why in writing it would one include the word substantial? Mike Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Quoting Douglas Laycock dlayc...@virginia.edu: 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 courts 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 courts 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
RE: The clergy-penitent privilege and burdens on third parties
This is an excellent hypothetical. My own inclination is that the only justification for a clergy-penitent privilege is a) if there is a duty to confess to a member of the clergy; and b) if the clergy in question believes that God will punish disclosure of the confession. (It shouldn't be enough that the doctrine of the religion prevents disclosure unless divine punishment is thought to attend it.) I have argued for some years that the only defense of religious privileges is the belief on the part of the claimant that commission of the act in question will generate divine sanctions. This is probably too strict, since I (still) support the critique of Smith, and I have no reason to believe that the ingestion of peyote was a divine command violation of which would generate some kind of punishment (including punishment in the world to come). But Eugene's hypo makes very real the costs to innocent third parties of treating any and all members of the clergy differently from one's best friends, fellow family members, or even, in most courts, reporters. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, December 03, 2013 7:39 PM To: Law Religion issues for Law Academics (religionlaw@lists.ucla.edu) Subject: The clergy-penitent privilege and burdens on third parties One more question about the unconstitutional burdens on third parties theory: The clergy-penitent privilege allows the clergy (and penitents) to refuse to testify about penitential communications, even when the result is that a litigant is deprived of potentially highly probative evidence. What's more, this is a specifically identifiable litigant who is being denied the benefit of applying the normal duty to testify. And, unlike with the conscientious objector exemption, the clergy-penitent exemption is indeed limited to religious communications, with no secular philosophical analog. (The psychotherapist-patient privilege, I think, is quite different, partly because it requires communications to someone who is licensed by the state, requires a state-prescribed course of training, and is usually quite expensive, and partly because it tends to have fewer exceptions.) Say, then, there are two people. Anita works for an employer who (by hypothesis) has been exempted from the usually applicable (with some secular exemptions) employer mandate as a result of a statutory religious objector exemption. As a result, she doesn't get, say, $500/year worth of contraceptive benefits that she would have been legally entitled to but for the employer mandate. Barbara is suing Don Defendant for $500,000. She has reason to think that Don has confessed to Carl Clergyman that Don is indeed liable, so she wants Carl to be ordered to testify about the communication. But Carl has been exempted from the usually applicable (with some secular exemptions) duty to testify as a result of a statutory clergy-congregant privilege. As a result, she doesn't win the $500,000 that she would have been legally entitled to but for the clergy-congregant privilege. Is the application of the clergy-congregant exemption from the duty to testify in Barbara's case an Establishment Clause violation, on the grounds that it imposes an excessive burden on Barbara? And if it isn't, then why would the application of the hypothetical exemption from the employer mandate an Establishment Clause violation in Anita's case? Eugene ___ 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.
Re: The clergy-penitent privilege and burdens on third parties
Eugene's hypothetical presumably describes some of the cases, from the least sophisticated or most desperate penitents. But it probably doesn't describe very many; most penitents rely on the privilege, and few would confess to their priest if priests were routinely testifying against folks who confessed. The word would obviously get around to perps that this is what priests do when you confess. So the plaintiff in Eugene's lawsuit really hasn't lost anything; the privilege deprives her only of evidence that would not exist but for the privilege. Meanwhile, the priest does some good, in at least some of the cases, toward encouraging reform or even restitution. In the original American case on the privilege, the priest had recovered the stolen goods and returned them to the owner. On Wed, 4 Dec 2013 02:37:42 + Levinson, Sanford V slevin...@law.utexas.edu wrote: This is an excellent hypothetical. My own inclination is that the only justification for a clergy-penitent privilege is a) if there is a duty to confess to a member of the clergy; and b) if the clergy in question believes that God will punish disclosure of the confession. (It shouldn't be enough that the doctrine of the religion prevents disclosure unless divine punishment is thought to attend it.) I have argued for some years that the only defense of religious privileges is the belief on the part of the claimant that commission of the act in question will generate divine sanctions. This is probably too strict, since I (still) support the critique of Smith, and I have no reason to believe that the ingestion of peyote was a divine command violation of which would generate some kind of punishment (including punishment in the world to come). But Eugene's hypo makes very real the costs to innocent third parties of treating any and all members of the clergy differently from one's best friends, fellow family members, or even, in most courts, reporters. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, December 03, 2013 7:39 PM To: Law Religion issues for Law Academics (religionlaw@lists.ucla.edu) Subject: The clergy-penitent privilege and burdens on third parties One more question about the unconstitutional burdens on third parties theory: The clergy-penitent privilege allows the clergy (and penitents) to refuse to testify about penitential communications, even when the result is that a litigant is deprived of potentially highly probative evidence. What's more, this is a specifically identifiable litigant who is being denied the benefit of applying the normal duty to testify. And, unlike with the conscientious objector exemption, the clergy-penitent exemption is indeed limited to religious communications, with no secular philosophical analog. (The psychotherapist-patient privilege, I think, is quite different, partly because it requires communications to someone who is licensed by the state, requires a state-prescribed course of training, and is usually quite expensive, and partly because it tends to have fewer exceptions.) Say, then, there are two people. Anita works for an employer who (by hypothesis) has been exempted from the usually applicable (with some secular exemptions) employer mandate as a result of a statutory religious objector exemption. As a result, she doesn't get, say, $500/year worth of contraceptive benefits that she would have been legally entitled to but for the employer mandate. Barbara is suing Don Defendant for $500,000. She has reason to think that Don has confessed to Carl Clergyman that Don is indeed liable, so she wants Carl to be ordered to testify about the communication. But Carl has been exempted from the usually applicable (with some secular exemptions) duty to testify as a result of a statutory clergy-congregant privilege. As a result, she doesn't win the $500,000 that she would have been legally entitled to but for the clergy-congregant privilege. Is the application of the clergy-congregant exemption from the duty to testify in Barbara's case an Establishment Clause violation, on the grounds that it imposes an excessive burden on Barbara? And if it isn't, then why would the application of the hypothetical exemption from the employer mandate an Establishment Clause violation in Anita's case? Eugene Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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
RE: The clergy-penitent privilege and burdens on third parties
I strongly suspect that Doug is right. Still, I do wonder how often cases do arise beyond the Catholic Church (which probably fulfills my conditions for the privilege). sandy -Original Message- From: Douglas Laycock [mailto:dlayc...@virginia.edu] Sent: Tuesday, December 03, 2013 10:06 PM To: Law Religion issues for Law Academics; Levinson, Sanford V Subject: Re: The clergy-penitent privilege and burdens on third parties Eugene's hypothetical presumably describes some of the cases, from the least sophisticated or most desperate penitents. But it probably doesn't describe very many; most penitents rely on the privilege, and few would confess to their priest if priests were routinely testifying against folks who confessed. The word would obviously get around to perps that this is what priests do when you confess. So the plaintiff in Eugene's lawsuit really hasn't lost anything; the privilege deprives her only of evidence that would not exist but for the privilege. Meanwhile, the priest does some good, in at least some of the cases, toward encouraging reform or even restitution. In the original American case on the privilege, the priest had recovered the stolen goods and returned them to the owner. On Wed, 4 Dec 2013 02:37:42 + Levinson, Sanford V slevin...@law.utexas.edu wrote: This is an excellent hypothetical. My own inclination is that the only justification for a clergy-penitent privilege is a) if there is a duty to confess to a member of the clergy; and b) if the clergy in question believes that God will punish disclosure of the confession. (It shouldn't be enough that the doctrine of the religion prevents disclosure unless divine punishment is thought to attend it.) I have argued for some years that the only defense of religious privileges is the belief on the part of the claimant that commission of the act in question will generate divine sanctions. This is probably too strict, since I (still) support the critique of Smith, and I have no reason to believe that the ingestion of peyote was a divine command violation of which would generate some kind of punishment (including punishment in the world to come). But Eugene's hypo makes very real the costs to innocent third parties of treating any and all members of the clergy differently from one's best friends, fellow family members, or even, in most courts, reporters. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, December 03, 2013 7:39 PM To: Law Religion issues for Law Academics (religionlaw@lists.ucla.edu) Subject: The clergy-penitent privilege and burdens on third parties One more question about the unconstitutional burdens on third parties theory: The clergy-penitent privilege allows the clergy (and penitents) to refuse to testify about penitential communications, even when the result is that a litigant is deprived of potentially highly probative evidence. What's more, this is a specifically identifiable litigant who is being denied the benefit of applying the normal duty to testify. And, unlike with the conscientious objector exemption, the clergy-penitent exemption is indeed limited to religious communications, with no secular philosophical analog. (The psychotherapist-patient privilege, I think, is quite different, partly because it requires communications to someone who is licensed by the state, requires a state-prescribed course of training, and is usually quite expensive, and partly because it tends to have fewer exceptions.) Say, then, there are two people. Anita works for an employer who (by hypothesis) has been exempted from the usually applicable (with some secular exemptions) employer mandate as a result of a statutory religious objector exemption. As a result, she doesn't get, say, $500/year worth of contraceptive benefits that she would have been legally entitled to but for the employer mandate. Barbara is suing Don Defendant for $500,000. She has reason to think that Don has confessed to Carl Clergyman that Don is indeed liable, so she wants Carl to be ordered to testify about the communication. But Carl has been exempted from the usually applicable (with some secular exemptions) duty to testify as a result of a statutory clergy-congregant privilege. As a result, she doesn't win the $500,000 that she would have been legally entitled to but for the clergy-congregant privilege. Is the application of the clergy-congregant exemption from the duty to testify in Barbara's case an Establishment Clause violation, on the grounds that it imposes an excessive burden on Barbara? And if it isn't, then why would the application of the hypothetical exemption from the employer mandate an Establishment Clause violation in Anita's case? Eugene Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580
Re: The clergy-penitent privilege and burdens on third parties
And the clergy-penitent privilege is one of many such privileges -- doctor-patient, lawyer-client, spousal privilege, etc. They are designed to encourage communication within relationships the law values. So this example is like Walz -- it does not involve special treatment for religion. It is that kind of special treatment that triggers the concern for third party harms (Estate of Thornton v. Caldor). On Tue, Dec 3, 2013 at 10:05 PM, Douglas Laycock dlayc...@virginia.eduwrote: Eugene's hypothetical presumably describes some of the cases, from the least sophisticated or most desperate penitents. But it probably doesn't describe very many; most penitents rely on the privilege, and few would confess to their priest if priests were routinely testifying against folks who confessed. The word would obviously get around to perps that this is what priests do when you confess. So the plaintiff in Eugene's lawsuit really hasn't lost anything; the privilege deprives her only of evidence that would not exist but for the privilege. Meanwhile, the priest does some good, in at least some of the cases, toward encouraging reform or even restitution. In the original American case on the privilege, the priest had recovered the stolen goods and returned them to the owner. On Wed, 4 Dec 2013 02:37:42 + Levinson, Sanford V slevin...@law.utexas.edu wrote: This is an excellent hypothetical. My own inclination is that the only justification for a clergy-penitent privilege is a) if there is a duty to confess to a member of the clergy; and b) if the clergy in question believes that God will punish disclosure of the confession. (It shouldn't be enough that the doctrine of the religion prevents disclosure unless divine punishment is thought to attend it.) I have argued for some years that the only defense of religious privileges is the belief on the part of the claimant that commission of the act in question will generate divine sanctions. This is probably too strict, since I (still) support the critique of Smith, and I have no reason to believe that the ingestion of peyote was a divine command violation of which would generate some kind of punishment (including punishment in the world to come). But Eugene's hypo makes very real the costs to innocent third parties of treating any and all members of the clergy differently from one's best friends, fellow family members, or even, in most courts, reporters. sandy From: religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, December 03, 2013 7:39 PM To: Law Religion issues for Law Academics (religionlaw@lists.ucla.edu) Subject: The clergy-penitent privilege and burdens on third parties One more question about the unconstitutional burdens on third parties theory: The clergy-penitent privilege allows the clergy (and penitents) to refuse to testify about penitential communications, even when the result is that a litigant is deprived of potentially highly probative evidence. What's more, this is a specifically identifiable litigant who is being denied the benefit of applying the normal duty to testify. And, unlike with the conscientious objector exemption, the clergy-penitent exemption is indeed limited to religious communications, with no secular philosophical analog. (The psychotherapist-patient privilege, I think, is quite different, partly because it requires communications to someone who is licensed by the state, requires a state-prescribed course of training, and is usually quite expensive, and partly because it tends to have fewer exceptions.) Say, then, there are two people. Anita works for an employer who (by hypothesis) has been exempted from the usually applicable (with some secular exemptions) employer mandate as a result of a statutory religious objector exemption. As a result, she doesn't get, say, $500/year worth of contraceptive benefits that she would have been legally entitled to but for the employer mandate. Barbara is suing Don Defendant for $500,000. She has reason to think that Don has confessed to Carl Clergyman that Don is indeed liable, so she wants Carl to be ordered to testify about the communication. But Carl has been exempted from the usually applicable (with some secular exemptions) duty to testify as a result of a statutory clergy-congregant privilege. As a result, she doesn't win the $500,000 that she would have been legally entitled to but for the clergy-congregant privilege. Is the application of the clergy-congregant exemption from the duty to testify in Barbara's case an Establishment Clause violation, on the grounds that it imposes an excessive burden on Barbara? And if it isn't, then why would the application of the hypothetical exemption from the employer mandate an Establishment Clause violation in Anita's case? Eugene Douglas Laycock Robert E. Scott
RE: The clergy-penitent privilege and burdens on third parties
Well, people do talk incautiously in contexts where no privilege is available, and their statements are used as a result. Some people might not talk if they knew a privilege was unavailable, but others still might, especially if they feel they need to unburden themselves, and even more especially if they feel that such confession is a religious necessity. (As I understand it, for instance, many psychiatrists' patients do say things to the psychiatrists that alert the psychiatrists to a danger to third parties, even though there is an exception to the privilege and to professional ethics in such situations, and even though under Tarasoff psychiatrists sometimes have a duty to disclose such threats. Not a perfect analogy, I realize, but I hope a helpful one.) So the consequence is that some litigants would not have benefited from the absence of a clergy-penitent privilege, since the penitent wouldn't have confessed. But others would have, and I would think that there would be a considerable number of such others. Under the Establishment Clause burden on nonbeneficiaries argument, why should it be necessary that the $500,000 loss to Barbara be guaranteed, as opposed to simply happening with some regularity to people in Barbara's shoes? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Tuesday, December 03, 2013 7:40 PM To: Douglas Laycock; Law Religion issues for Law Academics Subject: RE: The clergy-penitent privilege and burdens on third parties I strongly suspect that Doug is right. Still, I do wonder how often cases do arise beyond the Catholic Church (which probably fulfills my conditions for the privilege). sandy -Original Message- From: Douglas Laycock [mailto:dlayc...@virginia.edu] Sent: Tuesday, December 03, 2013 10:06 PM To: Law Religion issues for Law Academics; Levinson, Sanford V Subject: Re: The clergy-penitent privilege and burdens on third parties Eugene's hypothetical presumably describes some of the cases, from the least sophisticated or most desperate penitents. But it probably doesn't describe very many; most penitents rely on the privilege, and few would confess to their priest if priests were routinely testifying against folks who confessed. The word would obviously get around to perps that this is what priests do when you confess. So the plaintiff in Eugene's lawsuit really hasn't lost anything; the privilege deprives her only of evidence that would not exist but for the privilege. Meanwhile, the priest does some good, in at least some of the cases, toward encouraging reform or even restitution. In the original American case on the privilege, the priest had recovered the stolen goods and returned them to the owner. On Wed, 4 Dec 2013 02:37:42 + Levinson, Sanford V slevin...@law.utexas.edu wrote: This is an excellent hypothetical. My own inclination is that the only justification for a clergy-penitent privilege is a) if there is a duty to confess to a member of the clergy; and b) if the clergy in question believes that God will punish disclosure of the confession. (It shouldn't be enough that the doctrine of the religion prevents disclosure unless divine punishment is thought to attend it.) I have argued for some years that the only defense of religious privileges is the belief on the part of the claimant that commission of the act in question will generate divine sanctions. This is probably too strict, since I (still) support the critique of Smith, and I have no reason to believe that the ingestion of peyote was a divine command violation of which would generate some kind of punishment (including punishment in the world to come). But Eugene's hypo makes very real the costs to innocent third parties of treating any and all members of the clergy differently from one's best friends, fellow family members, or even, in most courts, reporters. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, December 03, 2013 7:39 PM To: Law Religion issues for Law Academics (religionlaw@lists.ucla.edu) Subject: The clergy-penitent privilege and burdens on third parties One more question about the unconstitutional burdens on third parties theory: The clergy-penitent privilege allows the clergy (and penitents) to refuse to testify about penitential communications, even when the result is that a litigant is deprived of potentially highly probative evidence. What's more, this is a specifically identifiable litigant who is being denied the benefit of applying the normal duty to testify. And, unlike with the conscientious objector exemption, the clergy-penitent exemption is indeed limited to religious communications, with no secular philosophical analog. (The psychotherapist-patient
RE: The clergy-penitent privilege and burdens on third parties
I don't think that's right. First, recall that the employer mandate exemption is supposed to be one of at least a few such exemptions (grandfathered plans and under-50-person plans being the other ones); fewer than the privileges, but not by that much. Second, as I mentioned, the clergy-penitent privilege is unusually strong -- in California, as I understand it, it has no exemptions, while the others have some pretty big ones (e.g., the doctor-patient privilege doesn't apply at all to criminal cases, Cal. Evid. Code 998, and there are many exceptions to the spousal privilege and the lawyer-client privilege). It is also unusually easy to get: Unlike with doctors, lawyers, psychotherapists, there is no requirement of government licensure or extended professional training (though of course some but not all religions do require extended training as a matter of their own practice). Perhaps because of this, for many people a clergyman is the only person whose sympathetic ear and helpful counsel they can get for free, which doubtless makes it easier for the clergy to spread their own messages as part of such counsel. In that sense, the closer analogy isn't Walz but, I would think, Texas Monthly. There too there were doubtless many products that were exempt from sales tax (most food items being the classic example in most states). But this wasn't enough: The fact that Texas grants other sales tax exemptions (e. g., for sales of food, agricultural items, and property used in the manufacture of articles for ultimate sale) for different purposes does not rescue the exemption for religious periodicals from invalidation. What is crucial is that any subsidy afforded religious organizations be warranted by some overarching secular purpose that justifies like benefits for nonreligious groups. There is no evidence in the record, and Texas does not argue in its brief to this Court, that the exemption for religious periodicals was grounded in some secular legislative policy that motivated similar tax breaks for nonreligious activities. It certainly appears that the exemption was intended to benefit religion alone. Likewise, the purpose of the clergy-penitent privilege is quite different from that of the spousal privilege, the lawyer-client privilege, and the doctor-patient privilege, and I think different even from the psychotherapist-patient privilege (where the resemblance is stronger but still on balance quite distant). This isn't to say that Texas Monthly necessarily invalidates the clergy-penitent privilege -- the privilege does lift a government-imposed substantial burden on religious practice, and it isn't as clearly a preference for propagation of religious ideas (which is what the concurrences stressed). I just don't think that the clergy-penitent privilege can be saved on the grounds that it does not involve special treatment for religion. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, December 03, 2013 7:39 PM To: Law Religion issues for Law Academics Subject: Re: The clergy-penitent privilege and burdens on third parties And the clergy-penitent privilege is one of many such privileges -- doctor-patient, lawyer-client, spousal privilege, etc. They are designed to encourage communication within relationships the law values. So this example is like Walz -- it does not involve special treatment for religion. It is that kind of special treatment that triggers the concern for third party harms (Estate of Thornton v. Caldor). On Tue, Dec 3, 2013 at 10:05 PM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: Eugene's hypothetical presumably describes some of the cases, from the least sophisticated or most desperate penitents. But it probably doesn't describe very many; most penitents rely on the privilege, and few would confess to their priest if priests were routinely testifying against folks who confessed. The word would obviously get around to perps that this is what priests do when you confess. So the plaintiff in Eugene's lawsuit really hasn't lost anything; the privilege deprives her only of evidence that would not exist but for the privilege. Meanwhile, the priest does some good, in at least some of the cases, toward encouraging reform or even restitution. In the original American case on the privilege, the priest had recovered the stolen goods and returned them to the owner. On Wed, 4 Dec 2013 02:37:42 + Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: This is an excellent hypothetical. My own inclination is that the only justification for a clergy-penitent privilege is a) if there is a duty to confess to a member of the clergy; and b) if the clergy in question believes that God will punish disclosure of the confession. (It shouldn't be enough
RE: The clergy-penitent privilege and burdens on third parties
I once wrote an article, Testimonial Privileges and the Preferences of Friendship, 1984 DUKE LAW JOURNAL 631-662 (1984), the general thesis of which is that there is no truly plausible general theory of such privileges. (The title, incidentally, comes from Rousseau, who wrote that the preferences of friendship are thefts committed against the fatherland. All men are our brothers; all should be our friends. No doubt there's something scary in that notion, but it also captures the often-arbitrary partiality in allowing a small subset of individuals to refuse to offer evidence of criminal (or even tortious) behavior. But if one does defend such partialities and loyalties, then why must one be married, for example (especially in the modern world) to get an intimacy privilege, and why, exactly, do family members (other than spouses) have no privileges? Well-off people can go to psychiatrists, while less well-off talk to their bartenders and hairdressers (or, simply, best friends or workmates, none of whom are covered. Are nurse-practitioners (who will play an increasingly important role in the delivery of medical services) covered (a genuine, not a rhetorical, question, since I don't know what the answer is, and if it varies state by state, do we really expect ordinary people to realize whether they are protected or not)? In that article, I offered the thought-experiment of privilege tickets, a limited number of which we would get when we turned 18 and could distribute throughout our lifetimes to those we wished to immunize from state inquiries. Maybe the real question is what is contained within Chip's etc. If there are literally dozens of privileges, then one can engage in a gestalt switch and say that it is discriminating against the clergy to deny them what A-Y get. But if we're really talking about a small subset of people (none of whom get the kind of absolute privilege that the clergy apparently get), then I must say it looks an awful lot like Establishment to me, and I find Eugene's reference to the Texas Monthly case very persuasive. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, December 03, 2013 10:39 PM To: Law Religion issues for Law Academics Subject: Re: The clergy-penitent privilege and burdens on third parties And the clergy-penitent privilege is one of many such privileges -- doctor-patient, lawyer-client, spousal privilege, etc. They are designed to encourage communication within relationships the law values. So this example is like Walz -- it does not involve special treatment for religion. It is that kind of special treatment that triggers the concern for third party harms (Estate of Thornton v. Caldor). On Tue, Dec 3, 2013 at 10:05 PM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: Eugene's hypothetical presumably describes some of the cases, from the least sophisticated or most desperate penitents. But it probably doesn't describe very many; most penitents rely on the privilege, and few would confess to their priest if priests were routinely testifying against folks who confessed. The word would obviously get around to perps that this is what priests do when you confess. So the plaintiff in Eugene's lawsuit really hasn't lost anything; the privilege deprives her only of evidence that would not exist but for the privilege. Meanwhile, the priest does some good, in at least some of the cases, toward encouraging reform or even restitution. In the original American case on the privilege, the priest had recovered the stolen goods and returned them to the owner. On Wed, 4 Dec 2013 02:37:42 + Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: This is an excellent hypothetical. My own inclination is that the only justification for a clergy-penitent privilege is a) if there is a duty to confess to a member of the clergy; and b) if the clergy in question believes that God will punish disclosure of the confession. (It shouldn't be enough that the doctrine of the religion prevents disclosure unless divine punishment is thought to attend it.) I have argued for some years that the only defense of religious privileges is the belief on the part of the claimant that commission of the act in question will generate divine sanctions. This is probably too strict, since I (still) support the critique of Smith, and I have no reason to believe that the ingestion of peyote was a divine command violation of which would generate some kind of punishment (including punishment in the world to come). But Eugene's hypo makes very real the costs to innocent third parties of treating any and all members of the clergy differently from one's best friends, fellow family members, or even, in most courts, reporters. sandy From:
