I think Marci's distinction between substantial and incidental burdens goes to the question of the weight of the burden's materiality (penalty for noncompliance with government-imposed norms -- though sometimes financial harm is enough -- see Sherbert). I take her question in this regard to be a friendly addition to my own and to Marc's.
I think the either/or choices I attributed to others on the list (self-declaration of burden vs. objective adjudication) go to the question of the religious character and significance of the burden (e.g., degree of complicity in evil from cooperation with the mandate). That's a different question. But I think RFRA is stunningly ambiguous on the issue of whether its focus is materiality, religious character, or some combination of the two. On Tue, Oct 2, 2012 at 12:08 PM, <hamilto...@aol.com> wrote: > Actually, I do not recognize my position under either of Chip's either/or > choices. Rather, I would look to the cases, which have dealt with > interpreting "substantial burden" repeatedly. Courts have held in the vast > majority of cases that cost and convenience are not "substantial." That > weighs heavily against the ACA plaintiffs, to the extent they are > complaining about having to pay for insurance. > "Substantial" means that the religious practice has become "impracticable" > or severely curtailed. > > The ACA case creates a new, more extreme, demand, which is not that the > religious believer is being forced or prohibited from taking a particular > act, beyond purchasing an omnibus health care plan. Rather, it is that the > religious believer does not want to pay for a health insurance plan that > permits employees potentially to obtain health care with which the > employer disagrees. The employee (who, under Title VII or state > anti-discrimination law could not be hired or fired based on religious > belief, and who has the benefit of doctor/patient confidentiality) may well > be fine, on religious grounds, in obtaining the contraception and/or > abortion (indeed, their religious beliefs may actually require or encourage > such medical care), but the employer's objection is that someone may use a > health benefit in a way the religious employer doesn't want it used. Under > existing case law, this is an attenuated argument that induces an > "incidental" burden, not a substantial burden, for purposes of free > exercise analysis. > > Moreover, the slippery slope is steep. Jehovah's witnesses and blood > transfusion; Scientologists and mental health care; Catholics and > evangelicals and palliative care for the terminal, elderly patient....etc., > etc. > > I am not persuaded by Mark's distinction between the voucher cases, > where private decisions wash government money of its Establishment Clause > restrictions, and the ACA situation, where, again, a private actor, is > acting in an independent way that cannot be attributed reasonably to the > provider of the benefit. > > Marci > > On the other side, the government lawyers and courts get to second-guess > and decide what someone's religion really requires, and what kind of burden > on that is presumptively too great to force the claimant to endure. That > seems unconstitutional (see Hosanna-Tabor and other decisions on > Establishment Clause limits on the state's resolving internal religious > questions). > > Chip > > > > > > 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 > hamilto...@aol.com > > > -----Original Message----- > From: Marc DeGirolami <marc.degirol...@stjohns.edu> > To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > Sent: Tue, Oct 2, 2012 11:45 am > Subject: RE: Court Rejects Religious Liberty Challenges To ACA > Mandate--interpreting "substantial burden" > > Chip raises a problem I’ve been having a hard time understanding too. A > “burden” does seem to imply the willingness to suffer to some unspecified > degree (rising to the level of being “substantial”) on behalf of the > claimed belief. On the specific question of whether one should interpret > the adjective “substantial” to require some sort of “material burden,” I > believe that this is what the ED of Missouri court means when it says that > the claimant must be willing to “forfeit a benefit, pay a fine, or even > face criminal prosecution” (though I do not believe that the cases cited > for this proposition support the view that this is a necessary condition). > One might interpret this statement as a requirement that the plaintiff must > be willing to suffer **at least** one of these three kinds of penalties > in order for the burden to be substantial, or maybe to suffer at least some > sort of penalty period (again provided that the penalty is substantial). > It’s difficult for me to see that we would want to test the religious > liberty claim in all cases against a willingness to go to prison, for > example (Chip writes about a related issue in his “Failure of RFRA” piece, > I think). > > But even if we thought that willingness to pay a fine would be a good test > for substantiality (which I’ll admit doesn’t seem unreasonable to me, in > some cases), I wonder about how this would work in practice. That is, how > would we know that the plaintiff was really willing to pay a fine rather > than be forced to do something alleged to violate religious conscience? > What would be the proof? > > I’ll add that I am genuinely confused about the issue of substantiality of > the burden, because it does seem to me to require more than something like > subjective sincerity, but also to forbid courts from inquiring into the > importance of the belief, or the degree to which the belief has been > ratified by other religious adherents. If that is right, then what is left > to determine the substantiality of the burden other than the degree to > which the claimant is willing to suffer for his or her beliefs? > > Marc > > > *From:* religionlaw-boun...@lists.ucla.edu [ > mailto:religionlaw-boun...@lists.ucla.edu<religionlaw-boun...@lists.ucla.edu?>] > *On Behalf Of *Ira Lupu > *Sent:* Tuesday, October 02, 2012 11:10 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA > Mandate--interpreting "substantial burden" > > The formal "findings" in RFRA reference Sherbert and Yoder, but not > Thomas. Significant? > > Should Thomas even apply to artificial persons, like holding companies, > corporations, and religious non-profits? Shouldn't they be required to > articulate with clarity and precision just how their religious exercise is > burdened? > > I have not yet seen a reply to Bob Ritter's very good question about > what work is being done by the word "substantial" in RFRA. It has to mean > something. Does it refer to material burdens (e.g., one must pay a fine of > $X if one insists on compliance with one's own religious conscience)? Or > does it refer to the religious substantiality of the burden? > > The list appears to divide into two groups on this burden question. One > one side, the claimant gets to self-declare, and that triggers the strict > scrutiny of RFRA. That seems to wildly over-enforce religious freedom. > Consider the religiously idiosyncratic and libertarian employer who > objects to FLSA, OSHA, Title VII, etc. > > On the other side, the government lawyers and courts get to second-guess > and decide what someone's religion really requires, and what kind of burden > on that is presumptively too great to force the claimant to endure. That > seems unconstitutional (see Hosanna-Tabor and other decisions on > Establishment Clause limits on the state's resolving internal religious > questions). > > Chip > > > > _______________________________________________ > 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. > > > _______________________________________________ > 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. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ 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.
