I appreciate Jim's argument, and also the arguments that the
problem with the exemption isn't discrimination in favor of religion, but
rather the burden on third parties, regardless of whether the exemption is only
for the religious. (I hope to respond to those arguments soon.)
But as to the point below -- and assuming that a RFRA employer
mandate exemption that covers secular conscientious objectors is as
constitutional as the conscientious objector draft exemption -- wouldn't the
canon of interpreting statutes to avoid unconstitutionality (even setting aside
constitutional "doubt") be relevant here? It's true that RFRA generally
endorses Sherbert and Yoder and other federal cases, and in the absence of an
Establishment Clause objection it might well be interpreted to apply only to
religious objectors. But if indeed such an interpretation would lead to a
finding that RFRA is unconstitutional, wouldn't that cut pretty strongly in
favor of avoiding that interpretation, and including secular philosophical
objectors? The language isn't as clearly hostile to such an interpretation as
the language in the draft law was in Welsh. And, as I noted, the other broad
federal religious accommodation regime -- the Title VII religious accommodation
provision -- has largely been read by lower courts as covering secular
philosophical objectors as well as religious ones. Why wouldn't that, coupled
with the avoidance of unconstitutionality canon, counsel in favor of a
constitutionally permissible interpretation rather than a constitutionally
impermissible one?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Monday, December 02, 2013 8:11 AM
To: Law & Religion issues for Law Academics
Subject: Re: The Establishment Clause, burden on others, the employer mandate,
and the draft
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
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