Marci, read what you quoted. Read the passages I have boldfaced below. Bowen
and Lyng were explicitly about government actions that required nothing of the
plaintiffs. Those plaintiffs were not required to take any action at all. The
government caused problems for plaintiffs’ religion, but it did not require
them to do anything that violated their own understanding of their religion. A
lot of people don’t like that distinction, but that’s what it was.
The ACA plaintiffs are required to take action that violates their own
understanding of their religious obligations. Many arguments remain beyond that
point, but Bowen and Lyng do not address those arguments. Bowen and Lyng were
cases that did not reach that first step.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: [email protected]
[mailto:[email protected]] On Behalf Of [email protected]
Sent: Tuesday, October 02, 2012 9:44 AM
To: [email protected]
Subject: Re: Court Rejects Religious Liberty Challenges To ACA
Mandate--interpreting "substantial burden"
I think Lyng (which explicitly relies on Bowen) is indeed relevan to a
substantial burden analysis, because it states that even a potentially
disastrous burden is not the sort of burden that supports a finding of a free
exercise violation. It supports the view that a subjective view of burden does
not establish burden, and that an incidental
burden is insufficient. The possibility that an employee who does not share
the faith will use, in conjunction with a doctor's advice, contraception
and abortion medical services is a classic incidental burden. The employer has
not been foreclosed from preaching against contraception and abortion in
every conceivable context, and need never purchase it for an employee, and in
fact cannot even know if the employee is using it given doctor-patient
privilege. (Honestly, as others have implied, if parochial schools are going
to rely on the intervening actor theory to avoid an Establishment Clause
violation, they have real problems here.)
This is from the Lyng syllabus, which I'm including because it is more compact
than the full language of the opinion:
In Bowen v. Roy, <http://www.law.cornell.edu/supct-cgi/get-us-cite/476/693>
476 U.S. 693 -- which held that a federal statute requiring States to use
Social Security numbers in administering certain welfare programs did not
violate Indian religious rights under the Free Exercise Clause -- this Court
rejected the same kind of challenge that respondents assert. Just as inRoy, the
affected individuals here would not be coerced by the Government's action into
violating their religious beliefs; nor would the governmental action penalize
the exercise of religious rights by denying religious adherents an equal share
of the rights, benefits, and privileges enjoyed by other citizens. Incidental
effects of government programs, which may interfere with the practice of
certain religions, but which have no tendency to coerce individuals into acting
contrary to their religious beliefs, do not require government to bring forward
a compelling justification for its otherwise lawful actions. The Free Exercise
Clause is written in terms of what the government cannot do to the individual,
not in terms of what the individual can exact from the government. Even
assuming that the Government's actions here will virtually destroy the Indians'
ability to practice their religion, the Constitution simply does not provide a
principle that could justify upholding respondents' legal claims.
Marci
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
[email protected]
-----Original Message-----
From: Douglas Laycock <[email protected]>
To: 'Law & Religion issues for Law Academics' <[email protected]>
Sent: Mon, Oct 1, 2012 12:38 pm
Subject: RE: Court Rejects Religious Liberty Challenges To ACA
Mandate--interpreting "substantial burden"
Oops. Writing too fast.
What I meant to say is that neither Lyng, nor Bowen, nor Lee supports a
no-burden holding in the ACA cases. Lyng and Bowen do indeed appear
irrelevant. But Lee is not irrelevant; it supports a holding of substantial
burden. The Court accepted the Amish claim that payment of social security
taxes was forbidden by their faith, and concluded that requiring this payment
“interferes with their free exercise rights.” But “not all burdens are
unconstitutional. That state may justify a limitation on religious liberty . .
.” And it went on to find a compelling interest in collecting taxes, including
social security taxes.
So in Lee, the Court said that payment of funds to the government, for a stated
purpose that is religiously objectionable, is a constitutionally cognizable
burden on free exercise.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: [email protected]
[mailto:[email protected]
<mailto:[email protected]?> ] On Behalf Of Douglas Laycock
Sent: Monday, October 01, 2012 10:55 AM
To: 'Law & Religion issues for Law Academics'
Subject: FW: Court Rejects Religious Liberty Challenges To ACA
Mandate--interpreting "substantial burden"
Lyng and Bowen involved no regulation of religious behavior. Lee expressly
found a burden on free exercise (455 U.S. at 257); the case was decided on
compelling interest grounds. None of these cases have any relevance to the
burden issue in the ACA cases.
And by the way, I think that all three were rightly decided.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: [email protected]
[mailto:[email protected]] On Behalf Of [email protected]
Sent: Monday, October 01, 2012 8:34 AM
To: [email protected]
Subject: Re: Court Rejects Religious Liberty Challenges To ACA
Mandate--interpreting "substantial burden"
Religious groups and their supporters have been trying to water down
"substantial"
for years. The Alabama rfra doesn't include "substantial" and neither did the
failed North Dakota or Colorado
initiatives. One of the reasons the latter failed is overreaching, though it
is also attributable to the fact
that the Rutherford Institute and others lobbying for rfras have met their
match in a number of opposing groups.
The court in the ACA case did little more than apply existing law on the
interpretation of "substantial." Those arguing
the case was wrongly decided on this issue are arguing for a new standard.
That is contrary to RFRA's (and RLUIPA's) legislative history, which indicate
"substantial burden" was to be interpreted according to existing precedents (as
of 1993 and 2000)..... In other words, Lyng, Bowen, and Lee are the
governing interpretations for RFRA. Subjective views of burden are not part of
the doctrine. It would take the Supreme Court to overturn these
decisions to grant a win to the religiously affiliated institutions.
Marci
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
[email protected]
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