Would Marty (or anyone else) argue that a significant third-party harm is 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)). ----- Original Message ----- From: "A.E. Brownstein" < <mailto:[EMAIL PROTECTED]> [EMAIL PROTECTED]> To: "Law & Religion issues for Law Academics" < <mailto:religionlaw@lists.ucla.edu> religionlaw@lists.ucla.edu> Sent: Thursday, March 17, 2005 7:25 PM Subject: Re: Harm to others -- Please don't forget accommodations > One of the reasons list members may not be jumping in to discuss this > question is that it is such a hard question to answer. Many of us believe > that courts should consider the harm to third parties or the public good in > setting limits to the scope of permissible legislative accommodations. I > do. But having said that, I recognize that it is an extremely difficult job > justifying what kinds of harm or magnitude of harm cross the constitutional > line and violate the Establishment Clause. > > Part of the problem is that there is no standard of review here. If there > are accommodation choices available, is the state obligated to choose the > accommodation that burdens non-believers the least. I think this is the > problem (or part of the problem) with Zorach. It isn't necessary to waste > the nonparticipating student's time in accommodating the ability of > religious students to participate in a release time program. > > I have some sympathy with Marty's comment "that there is something > offensive to the Religion Clauses themselves to ask Private Party A to bear > significant costs in the service of Private Party B's religious beliefs." > But if that principle is applied as it is in Texas Monthly to suggest that > increasing the tax burden on nonbelievers renders an accommodation > unconstitutional, virtually all accommodations could be struck down as > unconstitutional. Many accommodations require the state to incur > administrative inconvenience costs (giving a make-up exam to the student > excused from school to observe a religious holiday), financial costs > (losing sales tax income if a house of worship is allowed to locate in a > commercial zone or if the state has to pay overtime to hire a substitute > for the religious employee observing the Sabbath or a religious holiday), > or, perhaps, some maintenance and wear and tear expenses. I don't think > those costs render an accommodation unconstitutional. > > The burden on private parties argument also raises the question of whether > an accommodation of uncertain constitutionality could be saved from > invalidation if the state spreads the cost of the accommodation from a > narrow class of private burden bearers to the general public. As I asked in > a prior post, what about the Catholic Charities case? If it is argued that > exempting a religious institutional employer from the obligation to provide > coverage for medical contraceptives in their employees' health plan is > unconstitutional because it causes private parties (the employees of > Catholic Charities) to pay for such insurance or for medical contraceptives > out of their own pockets, would the analysis change if the state provided > such coverage to employees of religious institutions at the state's own > expense? > > Marty, do you think accommodations that cause the state or the general > public to incur costs are unconstitutional? If not, what do you think about > my cost spreading suggestion? > > Alan Brownstein > UC Davis > > > > > > > > At 12:54 AM 3/16/2005 -0500, you wrote: >>I'm extremely heartened that my inquiry about the measure of harm to >>others in Religion Clause doctrine has spawned such a rich and interesting >>thread (or two). I'm still absorbing many of the posts -- they're coming >>too fast and furious! -- but I think it's fair to say this has been among >>our most fruitful of recent threads. And I don't mean to sidetrack it, or >>to stymie it in any way. But I think it's rather odd that the thread >>almost immediately after my initial questions turned into a discussion >>about the role of third-party harm in Free Exercise doctrine. "Odd" >>because, now 15 years after Smith, there isn't a whole lot of Free >>Exercise doctrine in which third-party harm could be at all >>relevant. It's not terribly important in the Lukumi/FOP v. Newark line of >>cases involving discrimination against religion or lack of general >>applicability. It doesn't really play much of an express role in the >>"ministerial exception" line of cases (although it could well explain the >>courts' reluctance to extend that doctrine to its logical conclusion, as >>in the sex-harassment cases). Of course, it does play a role in the one >>remaining "precedent" establishing Free Exercise rights against laws that >>genuinely are generally applicable -- namely, Yoder (compare Prince) -- >>but how much generative power does that case have? >> >>The place in current doctrine where third-party harm does play a very >>significant role -- as I indicated way back in my original post -- is in >>the Establishment Clause cases dealing with legislatively granted >>religious exemptions to generally applicable rules, i.e., in "permissive >>accommodation" cases. There's no question that, in determining whether >>such accommodations are constitutional, the Court has often looked to the >>degree or type of burden imposed on other private parties. (See, e.g., >>Thornton, Texas Monthly, the conscription cases, Hardison, cf. the briefs >>in the upcoming Cutter case -- although in other cases, the third-party >>harm question mysteriuosly fades into the background (e.g., the majority >>opinions in Amos and Zorach)). I believe the reason for this is the >>notion that there is something offensive to the Religion Clauses >>themselves to ask Private Party A to bear significant costs in the service >>of Private Party B's religious beliefs. This notion is most famously >>expressed in the "Three pence" and similar rhetoric from the framers. >> >>I'm still curious what folks think of this on the Establishment Clause >>side of things, in the context of permissive accommodations -- and, in >>particular, how we can distinguish unconstitutional third-party harms >>(e.g., Thornton; Harlan's concurrence in Walsh; I would add the religious >>exemptions to compulsory vaccination and child-welfare statutes) from >>those harms that the legislature may impose in the service of religious >>accommodations (e.g., the waste of nonparticipating students' classroom >>time in Zorach; Mr. Mayton's loss of his job of 16 years in Amos). >> >>But if everyone remains more interested in extending the Free Exercise >>discussion, please, by all means don't let my parallel question stand in >>the way. >>_______________________________________________ >>To post, send message to <mailto:Religionlaw@lists.ucla.edu> Religionlaw@lists.ucla.edu >>To subscribe, unsubscribe, change options, or get password, see >>http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >>Please note that messages sent to this large list cannot be viewed as >>private. Anyone can subscribe to the list and read messages that are >>posted; people can read the Web archives; and list members can (rightly or >>wrongly) forward the messages to others. > > _______________________________________________ > To post, send message to <mailto:Religionlaw@lists.ucla.edu> Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see <http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
