I would only add two caveats to Doug's point. First, in some cases (although not this one), it may be possible for the religious liberty claimant to give up what I call the surplus secular benefit he receives when a religious liberty accommodation that coincides with self interest is granted. In that case, the granting of an accommodation may be permissible. Second, this general problem helps to demonstrate why Justice Scalia's creation of a hybrid rights analysis to distinguish Wisconsin v. Yoder in the Smith case was so wrongheaded. One area where religious liberty accommodations are particularly inappropriate is conduct that constitutes the exercise of a fundamental right. Religious individuals cannot be provided preferences with regard to their freedom of speech, right to vote, right to marry, right to have children or other areas of protected conduct.
Alan Brownstein UC Davis School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Tuesday, March 02, 2010 1:30 PM To: Law & Religion issues for Law Academics; Volokh, Eugene Cc: 'Law & Religion issues for Law Academics' Subject: Re: Religious exemptions and preferences for the religious over the nonreligious I have always said that if your religious claim aligns too closely with self interest, you will lose, and that is the right result even if it is sometimes an unfortunate result. My standard classroom example has been conscientious objection to paying taxes, but this may become the new standard example. The court may write the opinion in a variety of ways. It find the claim insincere, or it may find that the claim invites many similar claims that will be insincere, or it may find a compelling interest in not trying to adjudicate all thsoe claims, or it may say that allowing such a claim discriminates against people of other faiths and nonbeleivers who can't make the same claim, or it may even recognize that allowing such a claim creates pressure to convert. In terms of substantive neutrality, the impact on secular self-interest changes incentives for every married prisoner -- and in the tax example, for substantially the whole adult population. These incentive effects may collectively be much greater than the burden on religious practice of those who would genuinely qualify with a sincere claim. Quoting "Volokh, Eugene" <vol...@law.ucla.edu>: > In Henderson v. Hubbard, 2010 WL 599886 (E.D. Cal. > Feb. 18), a prison inmate claimed that the denial of conjugal visits > with his wife violated RLUIPA and the Free Exercise Clause because he > believes that "as a Muslim, he is required to engage in sexual > relations with his wife." Assume that his belief is sincere; I > suppose it might well be; and let's even set aside whether the > exception was justified under strict scrutiny. (The court didn't > reach that, because it rejected the claim on statute of limitations > grounds.) > > Instead, assume that a prison decided to grant this > exemption from the generally applicable ban on conjugal visits, on > its own judgment or as a matter of state law. Would such an > exemption limited to religious objectors be constitutionally > permissible? Or would it be an undue preference for the religious > over the nonreligious, and on top of that one that pressures people > into claiming religious beliefs and participating in religious > practices in order to do that? (I assume that the incentive to claim > religious beliefs posed in this case is much greater than the > incentive to sit through a graduation prayer present in Lee v. > Weisman.) > > Eugene > Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713
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