Eugene -- One question about this passage from your message: "I take it that RFRA could likewise be interpreted to apply to philosophical conscientious beliefs."
Could such an interpretation of RFRA be squared with its stated purpose of restoring the protection of free exercise as set forth in Yoder, which said that philosophic beliefs were not protected under the Free Exercise Clause? "[I]if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau's choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses." - Yoder at 216. Of course, as you note, the Court had to twist the language of the conscientious objector exemption to apply it to philosophic conscientious beliefs, but it's hard to imagine today's Court engaging in the same type of (non) textual analysis. - Jim On Sun, Dec 1, 2013 at 11:14 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > I’ve been thinking some more about the argument that the > Establishment Clause forbids any RFRA-based religious exemptions from the > employer mandate, on the grounds that such exemptions would impose an > unacceptable burden on employees who would thus have to (say) pay for > contraceptives themselves. It seems to me that the conscientious objector > exemption offers an interesting (though necessarily imperfect) analogy. > > > > The draft exemption for conscientious objectors imposes a > burden on third parties -- for every person who is exempted from the draft > as a conscientious objector, there will be one other person who would > therefore have to go to kill and to risk death. Of course, that exemption > might have been upheld only because it has been interpreted to apply to > philosophical conscientious objectors as well as to religious objectors. > But I take it that RFRA could likewise be interpreted to apply to > philosophical conscientious beliefs. It would involve less twisting of the > statute, I think, than what was done for the draft exemption. And indeed > the other main body of federal religious exemption law -- the Title VII > religious accommodation provision -- has been interpreted by the EEOC and > many courts as applying to philosophical conscientious beliefs. > > > > Does it follow that, if the conscientious objector > exemption is consistent with the Establishment Clause, despite the burdens > it imposes on nonbelieving third parties, the RFRA-based employer mandate > exemption being urged in *Hobby Lobby *would be consistent with the > Establishment Clause, too? Or is there some reason why the former is > constitutional and the latter is not? > > > > Note that this is *not* a response to the argument that > there’s some other compelling government interest supporting denial of a > RFRA-based exemption in *Hobby Lobby*. I mean this to focus solely on > the argument that any such RFRA-based exemption would violate the > Establishment Clause. > > > > Eugene > > _______________________________________________ > 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. >
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