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This is, I think, exactly the right
question, Tom. Take, for example, the military conscription example -- the
Court avoided the serious Establishment Clause question by
preposterously construing the exemption to cover non-religious
conscientious objectors (Seeger, Welsh). But of
course, this expansion only exacerbated the harm to "third parties,"
i.e., to those who did not qualify for even the expanded exemption. If the
expanded exemption was not constitutionally problematic, Tom might ask, why was
the religion-only accommodation so dubious that it led the Court to extremes of
creative statutory interpretation?
I think the answer the Court has been suggesting --
although it's never articulated it directly -- is that it's not the harm, as
such, that raises the constitutional concern (as Tom notes, governments
harm some parties in order to assist others every day), but the imposition
of a burden on me to support (and only to support) someone else's
religious obligations, because such a burden in effect penalizes me for
not sharing the "preferred" theological commitments -- and the government may
not legitimately "take sides" on such theological questions, or (this is
the McConnell angle) act in a way that induces persons to alter or question
their religious commitments. A religion-neutral accommodation, by
contrast, may harm third parties even more as an absolute matter -- but
it is an accommodation that (in the Eisgruber/Sager lingo) gives "equal regard"
to all "fundamental" commitments, and thus is, at least in theory, an
accommodation that is available to everyone, regardless of their religious
beliefs; and, because of that more "publicly regarding" nature of the
accommodation, it is less problematic to ask some to bear the burden in a
particular case. (This is akin to the "reciprocity of advantage" notion in
regulatory takings law -- the more the regulation can be said, at least in
gross, to benefit the public as a whole, the greater the justification for
asking certain property owners to bear the brunt of the cost in a particular
case.) The closest the Court has gotten to this notion is at the end of
Caldor, when Burger writes: "This unyielding weighting in favor
of Sabbath observers over all other interests contravenes a fundamental
principle of the Religion Clauses, so well articulated by Judge Learned
Hand: 'The First Amendment . . . gives no one the right to insist that in
pursuit of their own interests others must conform their conduct to his own
religious necessities.' Otten v. Baltimore & Ohio R. Co., 205 F.2d 58, 61
(CA2 1953)." I think what Burger was trying to say was not simply that the
First Amendment does not give anyone the right to insist that others conform to
their religious necessities, but also, that (as in Caldor itself) the
First Amendment actually prohibits the government from
requiring such religion-specific conformity.
Take Hardison, for example. Quite
obviously, what was bothering the Court there was that a lot of nonreligious
employees, many of whom had seniority rights,
had "strong, but perhaps nonreligious, reasons for not
working on weekends," 432 U.S. at 81, and yet, under a broad reading of title
VII, Congress would not only fail to honor those employees' "strong"
reasons for having weekends off, but would even require such employees to
work more weekends so that others (less senior) could attend church or
honor their Sabbath. The Court was understandably reluctant to accept such
a rule. By contrast, a statute that gives every employee the
option of leave in "compelling" or "emergency" circumstances (cf. the Family and
Medical Leave Act) imposes a greater aggregate burden on employees, but
it provides a certain reciprocity of accommodation that does not depend on
whether one's strong commitments and needs have a
religious origin. Thus, no First Amendment problem, even as applied
to an employee who uses the leave for religious purposes.
I recognize that there are plenty of objections to
this sort of argument, and that it raises slews of questions -- it's
certainly not carefully defended anywhere that I know of. But I do
think there's something to it that warrants more careful
attention. Consider this: Why were Jefferson/Madison so
insistent that citizens not be taxed even a single penny, or "three pence," to
support religion? After all, citizens are taxed "three pence" to support
plenty of other things that they do not wish to support. But we
don't ordinarily consider that a problem (unless, of course, the tax pays
for activities the Court disfavors, such as the conduct of labor unions
(Abood) or for the government's mushroom ads (United
Foods)). Many academics have lately dismissed the "three pence"
tradition as wrong or anachronistic, but as the opinion in Locke v. Davey
demonstrates, it still has a great deal of generative power for
the Court. I think the "third-party harm" component of accommodation
doctrine is akin to, and derives from, this tradition. Thus, I think we
need to think harder about the "three pence" principle and why it should or
should not play any role in Religion Clause doctrine.
----- Original Message -----
From: "Berg, Thomas C." <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics"
<religionlaw@lists.ucla.edu>
Sent: Friday, March 18, 2005 1:43 PM
Subject: RE: Harm to others -- Please don't forget
accommodations > sufficient in itself to invalidate a legislative accommodation of religion? > If so, why should it be sufficient, given that the government adjusts and > shifts burdens like this all the time to accommodate secular interests? For > example, every deferment from the draft for graduate students, or for > persons with physical conditions that weren't seriously crippling, also > meant that some other "young men [would] have to go off to kill and be > killed in place of the" deferred or exempted. Likewise, accommodations > required by the Americans with Disabilities Act always impose "distinct > costs" on the employer in question, and often on other employees as well. > > Of course, the Establishment Clause may limit government action with respect > to the religious interest while no constitutional provision (post-New-Deal) > limits it with respect to secular interests. But I'm not sure how > convincing it is to say that "there's something offensive to the Religion > Clauses in asking private party A to bear significant costs in the service > of private party B's religious beliefs" -- once we acknowledge that in a > crowded and interrelated society, accommodating one interest will often > involve shifting costs, even kinds that Marty calls "distinct costs," to > others. At the very least, we have to consider that the other half of the > Religion Clauses, the Free Exercise Clause, implies that religious > conscience is a particularly important interest. If shifting costs -- even > "distinct costs" -- is an inevitable part of accommodating interests, then > some such shifting has to be allowed if religious conscience is to be given > the importance that the Free Exercise Clause implies. That suggests, at the > least, a weighing of the relative burdens (the one removed from religious > conscience by the accommodation, and the one imposed on others), not just a > focus on the latter. > > Tom Berg > > _____ > > From: Marty Lederman [mailto:[EMAIL PROTECTED] > Sent: Fri 3/18/2005 3:56 AM > To: Law & Religion issues for Law Academics > Subject: Re: Harm to others -- Please don't forget accommodations > > > Alan: Thanks very much for that thoughtful reply. To answer your discrete > question: No -- I don't think that "economic" cost to the state itself > (e.g., lost tax revenue) should ordinarily count as a "third-party" harm > that should call accommodations into question, even though obviously such > costs are eventually borne by the people as a whole (e.g., each person's tax > burden is marginally higher). However Texas Monthly should have been > decided (and I'm generally with the majority and the White concurrence), I > don't think it's a case where "third party harms" should drive the decision. > What I'm thinking of instead are the private parties who suffer (for lack of > a better word) "direct" harms from accommodations, such as the employers and > (especially) fellow employees in Thornton and Hardison, the young men who > will have to go off to kill and be killed in place of the religious > objectors in the draft cases, the students left to sit idly by in Zorach and > recent release-time cases, the long-time employee fired in Amos, the > children left unvaccinated -- and those exposed to such children -- where > there are religious exemptions to compelled-immunization statutes, etc. > > Indeed, I think this is an important distinction in the Cutter case that is > to be argued on Monday: Ohio complains that RLUIPA imposes at least two > sorts of harms in prisons: (i) administrative costs to the state in > complying with RLUIPA (i.e., time and money); and (ii) safety risks to > guards and fellow inmates. I don't think that the former ought to play much > of a role in deciding whether a particular application of RLUIPA would > violate the Establishment Clause -- it's a harm to the state, and the > Religion Clauses do not protect the States, as such, from costs imposed by > the private exercise of religion (even though those costs are ultimately > distributed, and dispersed, to the taxpaying public as a whole). (I realize > that Jefferson/Madison "three pence" rhetoric suggests otherwise.) The > latter sort of cost, however -- risk of physical harm to guards and inmates > -- would implicate Establishment Clause concerns in cases where application > of RLUIPA actually imposed such costs. But in such cases, the State should > simply prevail as a statutory matter under RLUIPA; and, in any event, those > applications do not call into question the statute's facial validity. > Here's what I wrote on that question in my amicus brief on behalf of > Senators Hatch and Kennedy in Cutter: > > Respondents contend that some RLUIPA accommodations will endanger the safety > of prison guards and fellow prisoners. Br. in Resp. 12. Even if that > assumption were correct, the mere possibility of such as-applied problems > cannot possibly be grounds for invalidating section 3 on its face. In any > event, the assumption is mistaken, for two reasons: First, RLUIPA does not > appear to impose upon Ohio prison officials any requirements of religious > accommodation greater than those the Ohio Constitution already imposes of > its own force. See Humphrey v. Lane, 728 N.E.2d 1039, 1043, 1045 (Ohio > 2000). Accordingly, it is unlikely that RLUIPA would be the source of any > of the risks that respondents identify. Second, even assuming arguendo that > a RLUIPA accommodation would result in an additional, serious safety risk, > state defendants in such a case would be able to prevail quite easily as a > statutory matter, because in determining whether a state institution has a > narrowly tailored, compelling justification for denying the requested > exemption, courts should "'continue the tradition of giving due deference to > the experience and expertise of prison and jail administrators in > establishing necessary regulations and procedures to maintain good order, > security and discipline, consistent with consideration of costs and limited > resources.'" [Hatch and Kennedy] Joint Statement, 146 Cong. Rec. at S7775 > (quoting RFRA Senate Report, S. Rep. No. 103-111, at 10 (1993)). |
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