The free exercise case law does not come close to sufficiently fleshing it out (and has internal contradictions), and a general term like "substantial burden" inevitably must evolve in light of the facts of cases as they arise and are decided.
If there had never been a Smith or a RFRA. I expect we would be having exactly the same fight over whether the employer mandate under ACA was a substantial burden under the free exercise clause. On Tue, Oct 2, 2012 at 2:02 PM, <hamilto...@aol.com> wrote: > Chip-- With respect to RFRA, "substantial burden" was adopted from the > case law. > Are you suggesting that it has evolved into a different standard? > > 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 > hamilto...@aol.com > > > -----Original Message----- > From: Ira Lupu <icl...@law.gwu.edu> > To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > Sent: Tue, Oct 2, 2012 1:02 pm > Subject: Re: Court Rejects Religious Liberty Challenges To ACA > Mandate--interpreting "substantial burden" > > 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. > > > _______________________________________________ > 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.
