Assuming Jane Smith would otherwise lose a job of longstanding here, I think we agree on this one, Eugene! Not because Jane thinks the presence of her name makes her "complicit" in the sense of responsible for the execution (it doesn't), but because, on your hypo, her (very idiosyncratic) religion would prohibit her from engaging in allegedly "symbolic" conduct such as this.
The harder case is more commonly encountered. I, for instance, think that the death penalty is categorically immoral. Indeed, I've refused to be involved in any matters regarding it in all of my employments. (My employers and coworkers have been appropriately, and graciously, very accommodating.) Let's assume that this moral view of mine is largely informed by my religion. I *don't *believe that my religion prohibits my involvement in death penalty cases (at least not unless I were asked to make a discretionary decision in favor of death); but I nonetheless find any involvement on my part deeply disturbing, something that I have endeavored to avoid whenever possible. If I'm told that my continued employment in my longstanding, revered job depends upon my work on the case, does that impose a substantial burden on my religious exercise, in the absence of any religious injunction? I find this to be a very difficult question -- and I think it (rather than the implausible claims of complicity) actually describes what is going on in many of our contested cases and hypos. On Sat, Sep 5, 2015 at 2:33 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > Let me bring up again something that I think I mentioned > earlier. Say that in the state of Kennessee, death warrants have to be > filed in a county clerk’s office together with a county clerk’s > “acknowledgment of filing of death warrant” form, and by statute that > acknowledgment form has to include the county clerk’s name (though not her > signature). > > > > Say that Jane Smith, a county clerk, believes that the death penalty is > murder, and thus a grave sin. She also believes that complicity with the > death penalty is itself sinful. She realizes, though, that everyone in > society is in some measure connected with everything – through paying > taxes, through providing staple goods and services (such as selling the > paper on which a death warrant will be printed), and so on. That is > especially so of government employees and officials. So, after reflection, > prayer, and fasting, she concludes that it would be permissible for her > office to file the death warrant, but that having her name on an > acknowledgement of a warrant authorizing a man’s killing would be > unacceptable complicity. This is purely symbolic, of course, but she > thinks this symbolism matters to God, just as symbolism matters in many > other contexts to many other people. She goes to state court, arguing that > under the state RFRA, she should be allowed to have her office file the > warrants with a form that excludes her name. > > > > Why wouldn’t that be a standard, relatively straightforward application of > the state RFRA? There is indeed a compelling government interest in making > sure that the democratically authorized death penalty is implemented, > notwithstanding the objection of one elected official. But the requirement > that the clerk have her office file documents with her name isn’t necessary > to serving that compelling interest; a court order stating that, under the > state RFRA, the clerk can have her office file the documents without her > name included, would make clear that the documents without the name are > valid. The compelling government interest is served. The religious > objector’s religious beliefs, however unreasonable some might view them as > being, are satisfied. Isn’t that precisely what state RFRAs are supposed > to do? > > > > (Of course, I realize that many people have a very different view of the > morality of the death penalty and of same-sex marriage – but I take it that > those differences shouldn’t affect the state RFRA analysis.) > > > > 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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