I appreciate very much your proposed brightline test as it appears narrowly tailored to address this issue that is before the court in the Zubik / Little Sisters / etc. cases, and it would do so with surgical precision. Having said that, your 3/20/2016 article in the Washington Post about the cases putting religious liberty at risk raises an alarm of what could happen if the Court does not follow your proposed test, or something similar, and instead issues a broad decision.
My concern for religious liberty is not so much with what the Court would do in this round, but rather what the reaction to the Court's decision could do to RFRA, etc. In short, I'm afraid that RFRA has been hijacked. RFRA came into being following the Smith case which involved the smallest of religious minorities and now it's grown into this huge thing that protects the "free exercise" rights of corporations that are owned by religious people to take actions that are against the rights that their employees would otherwise get under federal law (ACA contraception for instance). At the same time, as a function of Boerne, etc., RFRA is limited to actions of the Federal government and not to states. So a Hobby Lobby facing a similar contraception mandate under state law in a non-RFRA state would simply have to comply with that law because Smith would still apply. Because RFRA has been used almost abusively whenever the word "religion" gets associated with an action (any action by a religious organization being considered religious), it's almost impossible to pass state-level RFRAs to protect individual rights of citizens and they remain vulnerable. Because RFRA has been so stretched out of shape by the cases that were ostensibly intended to strengthen it, I fear that this latest round of cases will continue to harm it to the point where it will become so impractical that a new Congress could simply modify it out of existence. (I wrote of my concerns on my blog in November after the Court granted cert - http://religiousliberty.tv/new-supreme-court-case-could-stretch-rfra-to-breaking-point.html ) My struggle has been in trying to convince people who support religious liberty that a win on these attenuated cases is simply setting up the demise of RFRA, but that requires a perspective that both contemplates the basic legal aspects of the case before us and the greater political realities of what will happen next - that winning this battle could lead to losing the war. That's why I am trying to come up with a hypothetical that could explore the farthest contours of a potential ruling in favor of the petitioners in Zubik. Michael Peabody ReligiousLiberty.TV http://www.religiousliberty.tv On Tue, Mar 22, 2016 at 10:04 AM, Laycock, H Douglas (hdl5c) <hd...@virginia.edu> wrote: > Cases such as those Chip describes probe far too deeply into what the > religious claimant believes. And they are not the only ones. Congress tried > to address such cases in the RLUIPA amendments to RFRA, specifying that a > religious practice need not be compulsory or central to be protected. The > brief that the Baptist Joint Committee and I filed emphasizes the error of > these cases, the danger of overly intrusive inquiries, and the need for > substantial deference to religious understandings of what is burdensome. > > > > But we say that such deference cannot be absolute, that it never has been > absolute, and that if it were absolute, absurd results would follow. But > absolute deference is what both sets of petitioners ask for. They say the > courts can examine sincerity, and they can examine the magnitude of the > penalty for non-compliance, but then the substantial burden inquiry is over. > Courts cannot examine the substantiality of the burden on religion, apart > from the penalties. > > > > And as Marty suggested in a separate post, our brief explicitly proposes a > bright-line test: “Religious objectors are not entitled to exemptions for > secular entities they deal with at arm’s length, or to control the > government’s regulation of such entities.” > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 > > > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu > Sent: Tuesday, March 22, 2016 12:40 PM > To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > Subject: Re: Zubik / Little Sisters - testing the scope via a hypothetical > > > > We cite four federal district court decisions at pp. 228-229 in the book -- > Luke v. Williams (Oregon); Sayed v. Proffitt (Colorado); Vigil v. Jones > (Colorado); Wares v. Simmons (Kansas), > https://casetext.com/case/wares-v-simmons-2. Ware involved rabbinical > testimony that certain books, desired by a prisoner, were non-essential to > the Jewish faith. > > Pre-1997 RFRA cases from prisons were thick with decisions involving the > question of religious burdensomeness (prison officials do not want to have > to meet the compelling interest test, even a prison-adjusted one, every time > a prisoner asserts the religious significance of a forbidden practice.) I > cite a number of them in The Failure of RFRA, 20 U. Ark. Little Rock L.J. > 575 (1998). > > RLUIPA land use cases involve questions of the religious impact of not being > able to expand a church, add a wing for a church school, or build a parking > lot. > > And do you deny that Yoder invites inquiry into the religious significance > or religious impact of a challenged policy? That is the only "burden" > inquiry in Yoder. > > Please keep in mind that I find all of this deeply troublesome. But RFRA > invites it. (Thomas v. Review Board says courts cannot second guess a > claimant's reading of Scripture. But that does not mean courts cannot > question the religious significance of the actions forbidden or required.) > > > > On Tue, Mar 22, 2016 at 11:57 AM, Kniffin, Eric N. <eknif...@lrrc.com> > wrote: > > Ira, I don't understand the distinction I think you are trying to make. We > agree that sounds like a court must accept the sincere testimony of a Muslim > prisoner who claims his faith requires him to keep a half inch beard. But > you believe the court may instead decide that being forced to shave is, > contrary to the prisoner's testimony, actually not that big of a deal? What > cases have been decided on this basis? > > > > Eric > > > > > _______________________________________________ > 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.
