Religious groups and their supporters have been trying to water down
substantial
for years. The Alabama rfra doesn't include substantial and neither did the
failed North Dakota or Colorado
initiatives. One of the reasons the latter failed is overreaching, though it
is also attributable to
Good to know.
There are also some statutes like Colorado’s, which (last time I looked)
prohibits discrimination on the basis of “any lawful off-the-job activity.” I’m
told that these were passed by the tobacco lobby, but I have never verified
that. I forgot about those last night, and I
I did indeed; the Colorado statute has been read – quite
reasonably, given its text – to apply to speech as well as other off-the-job
activity. Colorado also has another, much older, statute that protects
employees’ political activity. (Many states besides the one I listed
Lyng and Bowen involved no regulation of religious behavior. Lee expressly
found a burden on free exercise (455 U.S. at 257); the case was decided on
compelling interest grounds. None of these cases have any relevance to the
burden issue in the ACA cases.
And by the way, I think that all
Oops. Writing too fast.
What I meant to say is that neither Lyng, nor Bowen, nor Lee supports a
no-burden holding in the ACA cases. Lyng and Bowen do indeed appear
irrelevant. But Lee is not irrelevant; it supports a holding of substantial
burden. The Court accepted the Amish claim that
Dear colleagues,
Rob Vischer (St. Thomas – MN) has a reaction – one that identifies well the
decision’s many flaws -- to the decision we’re discussing, at the “Mirror of
Justice” blog:
Rob's thoughts are well worth reading -- he puts his finger on a bunch of
questions that are sure to be central to these cases going forward.
One caveat on the equivalence point raised by Rob and Rick:
To the extent the court is rejecting a proximate cooperation with evil
theory of substantial
Rick, Alan: Allow me to ask the flip-side question of the one Alan
raises: For those of us -- myself included, and you, and most of the
members of this list -- who have long argued that the state is
*not*responsible for the genuinely free and independent choices of
individuals
to use state $$ at
Imagine an observant Jew wants a kosher meal in prison. The prison
doesn't serve kosher food. Our plaintiff says, This burdens my
religion. The prison responds, No, it doesn't. You're not responsible
for the food we choose to serve in prison. That's a genuinely free and
independent choice
Let me add that American law has very different views of when
people are responsible for the acts of others, or when they can demand that
they not assist in the acts of others. For instance,
1. Zelman sets forth one rule when it comes to taxpayers'
right to
Chris-- I take it you are arguing that for every religious prisoner with a
dietary restriction, all of them can prove substantial burden,
but the state may or may not win under RLUIPA based on the state's evidence of
compelling interest?
Is it a substantial burden where the believer can
Must the prison supply kosher meat (and build a kosher kitchen) or is it enough
that it supplies nutritious vegetarian food, even though other prisoners get
meat?
sandy
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent:
No. The logic of the decision could be pushed that far in a parallel universe
or by faculty like us who may indeed inhabit a parallel universe, but such a
case is so easily distinguishable from a commercial business as to be
essentially irrelevant.
Steve
On Oct 1, 2012, at 11:57 AM, Rick
Thanks for your post, Marty. Rick, of course, will have to speak for himself.
But I don't believe that the independent choice of parents as to how they will
spend education vouchers should end the Establishment Clause inquiry. And I
also believe that the government's use of taxes to engage in
To Sandy, the “substantial burden” part of this will depend on what the
plaintiff believes. If the Jewish prisoner believes that he has a religious
obligation to eat Kosher meat, then there will be a “substantial burden” if
the prison doesn’t provide Kosher meat. But by having such a broad
One other variation: nuisance and related bodies of law generally hold
landlords responsible for what tenants do on the property.
On Mon, 1 Oct 2012 12:55:45 -0700
Volokh, Eugene vol...@law.ucla.edu wrote:
Let me add that American law has very different views of when
people
Steve -- I agree with what you've said. I would point out that you used the term
burden, not substantial burden. My point is that I the contraceptive mandate
burden's an employer's free exercise if they are opposed to the mandate for
religious reasons -- but, importantly, they are not
We have a long political tradition of treating objections to killing as a
special claim, deserving special protection. We have exempted conscientious
objectors in all our wars, even when national existence was on the line, and
notwithstanding powerful incentives to dubious conversions or false
Mark,
Barnette is direct and we can agree that compelled recitation violated
Barnette's Free Exercise of religion (and I hope we could agree that the current
Pledge with under God violates the Establishment Clause).
However, I believe that the court was correct in noting that once employment is
CJ Roberts is correct to look at the substance and not the word. In substance
it is a tax. It is not a penalty.
On Oct 1, 2012, at 7:28 PM, Ilya Somin wrote:
This argument ignores the fact that the problem with the tax argument for the
mandate was never that it was not for the general
As one of the few people on this list who both supports Smith and
supports jurisdiction-by-jurisdiction RFRAs, let me put in a plug for my
theory. The worry (expressed, for instance, by Sandy) that religious
objections, both sincere and insincere, can undermine an important law is a
Fortunately, the question here is far, far removed from whether the state
can or should require anyone to perform an abortion, or to kill in battle.
It is, instead, whether the state can require employers to take some of the
money they would have used to pay employee salaries, or taxes -- some of
My post on the analogy between exemption from military service and exemption
from abortion was addressed to Marci's claim that there should be nothing
special about objection to abortion. That is a much broader claim than just the
ACA issue. And there are people in the pro-choice movement
About 45 years ago I left the Catholic Church and don't keep up with its
teachings. This being said, it is my understanding that the Catholic Church has
not always opposed abortion. If this true, is long tradition true?
I also take exception to characterizing the Affordable Care Act and/or the
Thanks for the clarification, Doug. I had missed that particular part of
the exchange.
On the distinction you suggest, I think that the characterization of the
requirement as purchasing a package of services does not fairly describe
what's going on here. Or at the very least, this is nothing
The beliefs can be serious and strong. But that alone is not sufficient to make
the burden substantial.
Reminds me of taxpayer standing cases. A federal taxpayer generally doesn't have
standing to challenge appropriations because his or her tax dollars cannot be
specifically traced to the
So it is just a question of line drawing after all.
A. Is it at taxation with taxes paying for things you don't like?
B. Or is it paying a salary or wages that will be used by some for things
you don't like?
C. Or is it providing mandated benefits for things you don't like?
On the law we have, the employer buys the insurance policy. Different policies
cover different packages of benefits. These employers feel morally responsible
for the package they buy.
Of course they are generally entitled to define their own religious beliefs.
But in any event, that sense of
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