Alan, A state law that conditioned aid on not maintaining a Kosher kitchen would seem to discriminate on the basis of religion and to lack a compelling state interest. The Saturday operation condition might be treated as neutral on its face. If so, wouldn't Smith apply? Brian
>>> [EMAIL PROTECTED] 03/02/2004 2:29:47 PM >>> I think a soup kitchen affiliated with a Synagogue can receive funds from the state to feed the hungry and also have the free exercise right not to operate on Saturday or to maintain a Kosher kitchen. Do you disagree, Brian? I do agree that a religious organization that receives direct subsidies from the state must accept conditions accompanying those subsidies -- even if the condition violates the institutions religious commitments. But that's not what the WCEA does. Alan Brownstein UC Davis At 02:37 PM 3/2/2004 -0600, you wrote: >Brian raises an important question: >I think Catholic Charities, like many religious institutions, will have to >make a choice at this point, one that they have >been pushed to by the law for the past three decades; do they want to >continue receiving public monies, in which case they may >have to describe themselves as secular organizations, or do they want to >proclaim their religious character, get the >exemption, and then lose the funding. (Alternatively, I suppose they >could just drop drug coverage for their employees, but >they claim that would be unjust.) My hope is that they will do the >latter, with the unintended (?) consequence of the law >being that a lot of disadvantaged people will lose support. (Unless >funding is supplied by private donations...) > >Richard Dougherty >University of Dallas > >Brian Landsberg wrote: > > > The question posed was whether Catholic Charities were "religion." If > > so, they would have qualified for an exemption from the rule. > > > > If they are a religion, as they insist, should that affect their > > eligibility to participate in state and federal programs? > > > > >>> [EMAIL PROTECTED] 03/02/2004 6:20:00 AM >>> > > Several postings have suggested that any accommodation that imposes a > > burden > > on third parties is unconstitutional. Why should this be so? A failure > > to > > accommodate burdens the rights of religious individuals or > > institutions. Why > > should there be an inflexible rule that where there are unavoidably > > burdens > > on one party or the other, the burdens must inevitably be borne by the > > religious side to the dispute? In this regard it should be noted that > > in the > > California case, the burden on Catholic Charities was one of principle, > > the > > burden on employees was merely financial (They had to pay for their > > own > > contraceptives; Catholic Charities was not firing persons who used > > contraceptives). What is it (except ,perhaps ,deference to the > > democratic > > process) that makes all seem to assume that even in this context, the > > burden on religion must yield to the secular burden? > > Marc Stern > > > > -----Original Message----- > > From: [EMAIL PROTECTED] > > [mailto:[EMAIL PROTECTED] Behalf Of > > [EMAIL PROTECTED] > > Sent: Tuesday, March 02, 2004 8:49 AM > > To: [EMAIL PROTECTED] > > Subject: Re: Locke v. Davey and expanded free exercise rights > > > > I think Alan has made an interesting point here. The footnote states > > that > > "at least in some respects, [Washington's] constitution provides > > greater > > protection of relgious liberties than the Free Exercise Clause." > > First, I > > don't think it is unconstitutional for state constitutions, anymore > > than the > > First Amendment, to require strict scrutiny in certain circumstances, > > so > > long as there is an establishment principle at work as well. The goal > > is a > > balance of power between church and state, and that can be achieved > > via > > different calculations. There is no state that provides strict > > scrutiny in > > every circumstance under its state constitution, just as there was > > never a > > rule at the Supreme Court that strict scrutiny applied in every > > circumstance. It is beyond cavil that such a regime is intolerable. > > This > > footnote would have worried me had it spoken approvingly of a regime > > in > > which every law affecting religious entities is subject to strict > > scrutiny. > > > > Second, the footnote is speaking to judicially crafted interpretations > > of > > the free exercise clause. It does not speak to the proper conditions > > for > > legislative accommodation. Proper legislative accommodation requires > > a > > weighing of the special privilege to avoid the law against the harm to > > the > > public interest. The sort of blind accommodation at the base of RFRA > > and > > RLUIPA made it impossible for members of Congress to engage in this > > calculus. The failure to consider the public interest and to only > > focus on > > the benefit to religion shows that the law has an improper purpose. > > > > Marci > > > > Sorry for not being clearer, Marci. I'm not focusing on the holding in > > Locke but only on the note about expansive free exercise rights under > > the > > Washington constitution. I thought from some earlier posts quite a > > while > > back that you believed that religious exemptions that were not limited > > to > > specific problems violated the Establishment Clause -- and that this > > was > > one of your concerns with RFRA and RLUIPA. These laws created across > > the > > board exemptions, not a situation specific exemption. They applied to > > too > > many different activities and circumstances. (I may have gotten your > > position on this wrong. Obviously, if I did the rest of my question > > will > > not make a lot of sense.) > > > > State constitutions that provide broader and more rigorous protection > > for > > free exercise rights than the federal constitution seem to me to accept > > an > > across the board standard for religious exemptions. They typically > > apply a > > rule that requires some form of rigorous review to laws or individual > > assessments that substantially burden the exercise of religion. I > > would > > assume that if a state statute that creates an across the board > > exemption > > violates the Establishment Clause, a state constitutional provision > > that is > > interpreted to apply a similar exemption standard would also violate > > the > > Establishment Clause. > > > > I read Locke as commenting favorably on the expansive protection > > provided > > by the Washington constitution's free exercise clause. The Court seemed > > to > > suggest that play in the joints applied to both free exercise and > > establishment clause values and that the fact that the state provided > > greater protection under the state's free exercise clause than the > > federal > > constitution required helped to justify the Court's establishment > > clause > > holding. > > > > I don't suggest that these state constitutional interpretations are > > identical to RFRA or RLUIPA. Merely that they apply broadly to laws or > > individual assessments that substantially burden the exercise of > > religion. > > So my question is -- Do you believe that free exercise provisions in > > state > > constitutions that provide more rigorous protection than Smith and > > apply > > generally and broadly violate the Establishment Clause -- and if so, > > does > > the Court's language in Locke undercut such an argument. > > > > Alan Brownstein > > UC Davis > > > > _______________________________________________ > > To post, send message to [EMAIL PROTECTED] > > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > >_______________________________________________ >To post, send message to [EMAIL PROTECTED] >To subscribe, unsubscribe, change options, or get password, see >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
