RE: FW: RFRA substantial burden analysis
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 can't understand how they could believe what they say they believe, then we are at risk of judging not the sincerity of their belief but the reasonableness of it from our own point of view. It is not the govt's business to determine whether religious beliefs are reasonable. In any event, the Catholic church's view of complicity here is indeed facially plausible, as Eugene points out. (I think it is in fact reasonable, though that is beside the point.) There is no reason to doubt the bishops' sincerity here, nor any reason to second-guess their conviction that they would be complicit in sin were they to pay for such an insurance policy. And it is quite clear that the bishops have the right to speak for their hierarchical church and to assert its rights under the First Amendment as a religious association. Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, February 14, 2012 9:38 PM To: Law Religion issues for Law Academics Subject: RE: FW: RFRA substantial burden analysis Whoops, sorry for the jarring shift from the second person to the third person in the third paragraph From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]mailto:[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, February 14, 2012 9:36 PM To: Law Religion issues for Law Academics Subject: RE: FW: RFRA substantial burden analysis 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 than the conduct in which the person or organization regularly engages without any notion that it results in 'proximate material cooperation with evil'? I would think that it's obviously facially plausible to say that, once an employee has gotten a paycheck, the church is no longer responsible for what the employee does with it, but when a church is buying an insurance policy, it is responsible for the items that the insurance policy covers. Indeed, this seems to be much like the line drawn by four Justices in Zelman: Once the government gives someone money (a salary, welfare payments, unemployment compensation, etc.), the government is not responsible for the recipient's use of the money for religious purposes, but when the government is handing out education vouchers, it is responsible. And if you object that the program in Zelman mostly involved religious beneficiaries (of course, a highly contested question that turns on what denominator you use), consider the Washington Supreme Court's decision in Witters - or for that matter, the Washington state rule in Locke v. Davey - that applied the same distinction to a program whose beneficiaries were indubitably overwhelmingly secular. Naturally, one involves felt complicity in sin and the other felt subsidization of religious doctrine, but the underlying point for purposes of the proximate material cooperation line is the same. But it sounds like Marty requires more than just this level of facially plausible. And if we get past that level (or even to this level), then we're getting into the very sort of inquiry into the reasonableness of religious beliefs that the Court has rightly rejected. Say that an orthodox Jew insists that he needs a diet that doesn't mix chicken and milk. Will we start demanding a facially plausible explanation - in the sense of one that persuades us of its reasonableness - for why the bar on seething a kid in its other milk should extend to chicken but not to fish? Or how about an orthodox Jew who does some things on the Sabbath but not others. Will we start demanding a facially plausible explanation of why he can enter this kind of elevator but not that kind of elevator? Religious rules are often based on distinctions that are facially implausible to outsiders. It seems to me that the Court's view has consistently been that requiring someone to do something that he sincerely feels is religiously forbidden is a substantial burden, with no requirement of proof of plausibility - see, e.g., Thomas. And this strikes me as quite right both in general, and in this case in particular. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]mailto:[mailto:religionlaw-boun...@lists.ucla.edu
RE: FW: RFRA substantial burden analysis
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 issues for Law Academics Subject: RE: FW: RFRA substantial burden analysis 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 than the conduct in which the person or organization regularly engages without any notion that it results in 'proximate material cooperation with evil'? I would think that it's obviously facially plausible to say that, once an employee has gotten a paycheck, the church is no longer responsible for what the employee does with it, but when a church is buying an insurance policy, it is responsible for the items that the insurance policy covers. Indeed, this seems to be much like the line drawn by four Justices in Zelman: Once the government gives someone money (a salary, welfare payments, unemployment compensation, etc.), the government is not responsible for the recipient's use of the money for religious purposes, but when the government is handing out education vouchers, it is responsible. And if you object that the program in Zelman mostly involved religious beneficiaries (of course, a highly contested question that turns on what denominator you use), consider the Washington Supreme Court's decision in Witters - or for that matter, the Washington state rule in Locke v. Davey - that applied the same distinction to a program whose beneficiaries were indubitably overwhelmingly secular. Naturally, one involves felt complicity in sin and the other felt subsidization of religious doctrine, but the underlying point for purposes of the proximate material cooperation line is the same. But it sounds like Marty requires more than just this level of facially plausible. And if we get past that level (or even to this level), then we're getting into the very sort of inquiry into the reasonableness of religious beliefs that the Court has rightly rejected. Say that an orthodox Jew insists that he needs a diet that doesn't mix chicken and milk. Will we start demanding a facially plausible explanation - in the sense of one that persuades us of its reasonableness - for why the bar on seething a kid in its other milk should extend to chicken but not to fish? Or how about an orthodox Jew who does some things on the Sabbath but not others. Will we start demanding a facially plausible explanation of why he can enter this kind of elevator but not that kind of elevator? Religious rules are often based on distinctions that are facially implausible to outsiders. It seems to me that the Court's view has consistently been that requiring someone to do something that he sincerely feels is religiously forbidden is a substantial burden, with no requirement of proof of plausibility - see, e.g., Thomas. And this strikes me as quite right both in general, and in this case in particular. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, February 14, 2012 9:12 PM To: Law Religion issues for Law Academics Subject: Re: FW: RFRA substantial burden analysis I don't think anyone on this list would advocate a full-fledged trial on Catholic moral theology. I certainly wouldn't. What I have been suggesting, instead, is that courts might look to the objector's own conduct to see if it is reflective of a religious commitment that would be substantially burdened if an exemption were denied. Moreover, the government might ask 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 than the conduct in which the person or organization regularly engages without any notion that it results in proximate material cooperation with evil. The objector doesn't have to persuade the court (or in this case HHS) of the correctness of its religious view and of the viability of such distinctions. But it can't really be enough (can it?) for the court to accept Eugene's view that it must assume a substantial burden based on the objector's mere say-so, in a case where its dollars or resources are used, down the line and pursuant to intervening genuine and independent private choice (Zelman, Agostini), for activity that the employer finds morally objectionable, and where the employer regularly allows its resources to be used for those same foreseeable ends in other contexts. Quite honestly, my
RE: FW: RFRA substantial burden analysis
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 than the conduct in which the person or organization regularly engages without any notion that it results in 'proximate material cooperation with evil'? I would think that it's obviously facially plausible to say that, once an employee has gotten a paycheck, the church is no longer responsible for what the employee does with it, but when a church is buying an insurance policy, it is responsible for the items that the insurance policy covers. Indeed, this seems to be much like the line drawn by four Justices in Zelman: Once the government gives someone money (a salary, welfare payments, unemployment compensation, etc.), the government is not responsible for the recipient's use of the money for religious purposes, but when the government is handing out education vouchers, it is responsible. And if you object that the program in Zelman mostly involved religious beneficiaries (of course, a highly contested question that turns on what denominator you use), consider the Washington Supreme Court's decision in Witters - or for that matter, the Washington state rule in Locke v. Davey - that applied the same distinction to a program whose beneficiaries were indubitably overwhelmingly secular. Naturally, one involves felt complicity in sin and the other felt subsidization of religious doctrine, but the underlying point for purposes of the proximate material cooperation line is the same. But it sounds like Marty requires more than just this level of facially plausible. And if we get past that level (or even to this level), then we're getting into the very sort of inquiry into the reasonableness of religious beliefs that the Court has rightly rejected. Say that an orthodox Jew insists that he needs a diet that doesn't mix chicken and milk. Will we start demanding a facially plausible explanation - in the sense of one that persuades us of its reasonableness - for why the bar on seething a kid in its other milk should extend to chicken but not to fish? Or how about an orthodox Jew who does some things on the Sabbath but not others. Will we start demanding a facially plausible explanation of why he can enter this kind of elevator but not that kind of elevator? Religious rules are often based on distinctions that are facially implausible to outsiders. It seems to me that the Court's view has consistently been that requiring someone to do something that he sincerely feels is religiously forbidden is a substantial burden, with no requirement of proof of plausibility - see, e.g., Thomas. And this strikes me as quite right both in general, and in this case in particular. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, February 14, 2012 9:12 PM To: Law Religion issues for Law Academics Subject: Re: FW: RFRA substantial burden analysis I don't think anyone on this list would advocate a full-fledged trial on Catholic moral theology. I certainly wouldn't. What I have been suggesting, instead, is that courts might look to the objector's own conduct to see if it is reflective of a religious commitment that would be substantially burdened if an exemption were denied. Moreover, the government might ask 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 than the conduct in which the person or organization regularly engages without any notion that it results in proximate material cooperation with evil. The objector doesn't have to persuade the court (or in this case HHS) of the correctness of its religious view and of the viability of such distinctions. But it can't really be enough (can it?) for the court to accept Eugene's view that it must assume a substantial burden based on the objector's mere say-so, in a case where its dollars or resources are used, down the line and pursuant to intervening genuine and independent private choice (Zelman, Agostini), for activity that the employer finds morally objectionable, and where the employer regularly allows its resources to be used for those same foreseeable ends in other contexts. Quite honestly, my principal objective here is not to resolve the RFRA question, but instead to ask, at an earlier point in the process, why the state should grant the requested permissive accommodation in the first instance and, perhaps more importantly, to prompt thoughtful people within the Catholic tradition to give further consideration to whether this would, in fact, be a case
RE: FW: RFRA substantial burden analysis
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 know, for example, whether it is plausible for religious individuals to demand more from their institutions than they do of themselves. But I think they often do so. The overwhelming majority of the members of my Reform Synagogue do not keep kosher or observe the Sabbath. But they are adamant that the Synagogue does both. I also think that religious commitments aren't always rational. Scripture can be subject to multiple interpretations. Some interpretations may be more convincing to us than others for reasons that are hard to explain even to ourselves. Does that mean these commitments should be ignored by the state, even with respect to discretionary accommodations? Finally, I think it is a mistake to consider (or assume) the harm to others that granting an exemption may cause when determining whether there is a burden on religious exercise that may require accommodation for two reasons. First, considering the harm to others may prevent the decision maker from recognizing the actual extent of the burden on religious exercise. But if are going to decide to burden religious freedom, we should at least be fully cognizant of the extent to which we are doing so when we deny an exemption. Second, recognizing the burden on religious exercise can force the decision maker to more carefully determine whether there really will be harm to others if the exemption is granted or how that harm might be substantially mitigated. Dismissing a burden as unworthy of recognition substantially reduces the state's need to evaluate the importance of its interest and the means it has chosen to further that interest. Alan Brownstein 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 issues for Law Academics Subject: RE: FW: RFRA substantial burden analysis 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 than the conduct in which the person or organization regularly engages without any notion that it results in 'proximate material cooperation with evil'? I would think that it's obviously facially plausible to say that, once an employee has gotten a paycheck, the church is no longer responsible for what the employee does with it, but when a church is buying an insurance policy, it is responsible for the items that the insurance policy covers. Indeed, this seems to be much like the line drawn by four Justices in Zelman: Once the government gives someone money (a salary, welfare payments, unemployment compensation, etc.), the government is not responsible for the recipient's use of the money for religious purposes, but when the government is handing out education vouchers, it is responsible. And if you object that the program in Zelman mostly involved religious beneficiaries (of course, a highly contested question that turns on what denominator you use), consider the Washington Supreme Court's decision in Witters - or for that matter, the Washington state rule in Locke v. Davey - that applied the same distinction to a program whose beneficiaries were indubitably overwhelmingly secular. Naturally, one involves felt complicity in sin and the other felt subsidization of religious doctrine, but the underlying point for purposes of the proximate material cooperation line is the same. But it sounds like Marty requires more than just this level of facially plausible. And if we get past that level (or even to this level), then we're getting into the very sort of inquiry into the reasonableness of religious beliefs that the Court has rightly rejected. Say that an orthodox Jew insists that he needs a diet that doesn't mix chicken and milk. Will we start demanding a facially plausible explanation - in the sense of one that persuades us of its reasonableness - for why the bar on seething a kid in its other milk should extend to chicken but not to fish? Or how about an orthodox Jew who does some things on the Sabbath but not others. Will we start demanding a facially plausible explanation of why he can enter this kind of elevator but not that kind of elevator? Religious rules are often based on distinctions that are facially implausible to outsiders. It seems to me that the Court's view has consistently been that requiring someone to do something that he sincerely feels is religiously forbidden is a substantial burden
Re: FW: RFRA substantial burden analysis
I don't think anyone on this list would advocate a full-fledged trial on Catholic moral theology. I certainly wouldn't. What I have been suggesting, instead, is that courts might look to the objector's own conduct to see if it is reflective of a religious commitment that would be substantially burdened if an exemption were denied. Moreover, the government might ask 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 than the conduct in which the person or organization regularly engages without any notion that it results in proximate material cooperation with evil. The objector doesn't have to persuade the court (or in this case HHS) of the correctness of its religious view and of the viability of such distinctions. But it can't really be enough (can it?) for the court to accept Eugene's view that it must assume a substantial burden based on the objector's mere say-so, in a case where its dollars or resources are used, down the line and pursuant to intervening genuine and independent private choice (Zelman, Agostini), for activity that the employer finds morally objectionable, and where the employer regularly allows its resources to be used for those same foreseeable ends in other contexts. Quite honestly, my principal objective here is not to resolve the RFRA question, but instead to ask, at an earlier point in the process, why the state should grant the requested *permissive* accommodation in the first instance and, perhaps more importantly, to prompt thoughtful people within the Catholic tradition to give further consideration to whether this would, in fact, be a case involving proximate material cooperation with evil under Catholic doctrines, in a way that seemingly analogous uses of employer resources would not be -- and, if they conclude that it is, to explain to the state and to the public why the logic for granting the exemption here would not also counsel exemptions whenever employers have moral objections to requirements that their resources be used in certain ways, and whenever taxpayers object to the use of their money by the state. These are very hard questions. And what I am suggesting here undoubtedly would raise its own quite perplexing problems. But I can't believe the only workable answer to the difficulty is for the state always to accept the objectors' claims of *substantial* burden at face value, no matter how implausible such claims might appear in light of the objector's own conduct. After all, the objector is asking for an exemption that would harm third parties. The least the state could do, I would think, is presumptively to insist that the objector itself have demonstrated a willingness to bear that same level of cost, at a minimum, in the service of its religious commitment. On Tue, Feb 14, 2012 at 12:13 PM, Christopher Lund l...@wayne.edu wrote: I agree with a lot of this, and I share with Marty some of the same confusion and interest. 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 side. The government will be on the other, supported by Catholics unhappy with the church’s position on this. * * Both sides will claim to have the right reading of Catholic moral theology and the right conceptions of “cooperation,” “material cooperation,” “remote versus proximate material cooperation,” and “intrinsic immorality” within Catholic moral theology. They will introduce evidence to support their readings; they will argue about the true meaning of the Bible, Aquinas, and *Evangelium Vitae*. Both sides will have to account for various irregularities—exceptions made or implied by history, hypotheticals suggesting logical inconsistency which then in turn suggest bad faith and insincerity. Both sides will accuse the other of inconsistency and dishonesty. ** ** Marty gives a good example: Dissenters from the Church’s position will point out that the Catholic Church currently subsidizes abortions by paying salaries to women who might go out and get them. The Church will say that it’s not inconsistent. Perhaps the Church sees a difference in intent; it does not know whether any employee will get an abortion, it knows that that’s the point of an insurance rider covering abortion services. Or maybe it’s that the Church cannot effectively control its employees in this regard without sacrificing other important religious interests, but it can control decisions about insurance. Or maybe the Church would rather accept some inconsistency than cease to exist—after all, a Catholic Church unable to purchase goods or services (which always raises the possibility of immoral subsidization) would be unable to function. Our law has been entirely unable to come up
