When we think something isn't plausible, we may be wondering whether the person
is sincere, as in Ballard. As Eugene notes, we have to be very careful about
how we determine sincerity. That makes Ballard dangerous (though perhaps
necessary). If we conclude that someone is insincere because we
I agree with a lot of what Marty said, and I share some of the same
confusion and interest about the Catholic Church's views here. But
Marty's post reveals where it will lead-it seems to take courts right into
a full-fledged trial on Catholic moral theology. The Catholic Church will
be on one
Whoops, sorry for the jarring shift from the second person to
the third person in the third paragraph
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, February 14, 2012 9:36 PM
To: Law Religion
On the burden question -- Religious entities may limit hiring to
co-religionists, and then make their best efforts to enforce religious
norms against employees. Doesn't that option make the burden of the HHS
policy far less substantial?
I think a common reaction to the religious liberty claim
A side note on some of the discussion --As someone who was clerking at the
Court the Term that Smith was decided, I find it jarring to hear law professors
talk about Smith as though only one Justice either wrote it or voted for it.
That is not how cases are decided or majorities reached
Of course you are correct, Marci, but still one must concede that certain
rhetoric is clearly Scalian and the author of an opinion matters. In this
instance, one has the addition of the opinions in Hiahleah to make the
Smith opinion not as much a collective work as one might otherwise consider
it
Marty: Doesn't this all depend on what you mean by facially plausible in
whether the objector has at least articulated a facially plausible explanation
of why being compelled to engage in the conduct in question would impose a
materially different and more severe burden on religious exercise
Well, you know what comes next-Lukumi, if Hialeah says you have to have
good cause to kill an animal?
I understand Eugene's line-drawing concerns and I share them. I agree
that Newark is somewhat unprincipled and that it would be hard to get the
Supreme Court to accept its logic. But I go
A question: Say that an employee believes that God wants him to move across
country to be near his family, which needs his help. He quits his job, moves,
but can't find a job where his family lives. Should he be seen as
constitutionally entitled to unemployment compensation?
Eugene
Thanks, Eugene, for the thoughtful email. A couple short responses before
I run out the door.
First, not all secular killings were permitted in Lukumi. My
understanding is that they enforced the ban on cockfighting and the ban on
training greyhounds with rabbits. (There was actually an
Paul rightly asks us to consider more than just formalism. History is
important, and I think the concern about freedom of the church goes back at
least to Pope Gregory (?) in the 11th (?) Century. Cf. Antigone.
I've suggested elsewhere that a historical approach to what constitutes free
I agree with Chip that some burdens aren't treated as
substantial, see Lyng and Bowen (both of which I think were correctly decided).
But Lyng and Bowen involved situations where the restriction did not require a
claimant to do something that the claimant believed to be
Mark: A few hypotheticals: (1) Say that a state provides
that adequate provocation makes killing manslaughter rather than murder, and
that a particular set of behaviors - having sex with the defendant's spouse,
having just beaten a defendant (but in a situation where the
I agree with Eugene's post, but I'd like to add a few modest points to
reinforce his comments. (Full disclosure in advance: These aren't strictly
observations about law.)
In my experience there is sometimes a difference between abstract plausibility
and patterns of human behavior. I don't
No, I think it's mistaken, and likewise with the more recent
steel wheels case, Mitchell County v. Zimmerman (Iowa Feb. 3, 2012),
http://scholar.google.com/scholar_case?case=9939422895334605795 . The
conclusion that a public employer's provision of medical exemptions should
This has been an absolutely fascinating conversation--heated, yes, but terribly
educational. I'm grateful to the many people who have weighed in. Given that I
was otherwise occupied during the meat of this discussion I have hesitated to
contribute, but I did want to pull together a couple of
I agree with Eugene?! Wow! :)
Law of general applicability was again Scalia shooting from the hip, as
he makes quite clear in his concurrence in Hialeah. It could mean, in
theory, any number of things including:
1. Any exception for any reason makes it not general (self defense for
murder is
With regard to exemptions from an expensive obligation and their propensity
to result in sham claims, I think there are ways to structure an exemption to
mitigate if not eliminate that problem. The individuals or institutions seeking
an exemption have a right to religious liberty - to not
Similar question: Eugene, how would you today decide Sherbert v. Verner,
with its good cause requirement?
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Wednesday, February 15, 2012 2:32 PM
To: Law Religion issues for
Eugene,
I will try to respond to your hypos later today, but here is a non-hypothetical
question: Do you think Fraternal Order of Police v. Newark was correctly
decided?
Best,
Mark
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh,
I agree with you that general applicability may end up slipping us back
toward a motive inquiry. The cockfighting and the greyhounds I remember
from Hialeahs briefbut Im sorry about misleading on the greyhound
point.
From: religionlaw-boun...@lists.ucla.edu
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