RE: Religious freedom and 42 USC 666
Alan, I take your point, but would the objection to a statement and its symbolic effect be based on non-establishment rather than free exercise? A non-establishment argument seems quite plausible in your hypo where the statement, X is a false faith, is a facially religious assertion, but is it plausible if the criticism is just of a group's temporal activities? When the San Francisco board of supervisors adopted the resolution condemning groups that oppose homosexuality and the groups sued to challenge the resolution, did they state a free exercise as well as a non-establishment claim? Nearly all of the court's serious discussion was on the Establishment Clause. See American Family Assn. v. San Francisco, 277 F.3d 1114 (9th Cir. 2002). Tom From: [EMAIL PROTECTED] on behalf of Brownstein, Alan Sent: Fri 8/1/2008 12:34 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Tom, I tend to agree with you and Doug, but I think your description of Bowen v. Row is broader than the the way I would characterize it -- although the difference may be hair splitting. I think the idea behind Bowen v Roy isn't that a litigant can't challenge how the government has acted in its own operations, but that a litigant can't challenge how the government has acted in its own operations to avoid a kind of spiritual harm that has no real or secular world ramifications. I'm not certain that we can never challenge what the government calls its own laws. If the government used language in a law that stigmatized a particular religion -- an exemption or accommodation made available for members of false faiths (who use peyote in religious ceremonies or observe Saturday as the Sabbath) -- we might insist that the government change the language it uses to describe the accommodation because of the symbolic or status harm that it causes. But the alleged harm that results fr! om being indirectly associated with the mark of the beast is different. I think that the government is acting in its own sphere in Lyng, but it is also doing something to the Native Americans' ability to practice their faith that has a tangible, secular dimension to it -- and that distinguishes it from, and makes it a more difficult case than, Bowen v. Roy where the harm can only be understood in spiritual terms. Alan Brownstein UC Davis School of Law From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Berg, Thomas C. [EMAIL PROTECTED] Sent: Thursday, July 31, 2008 7:55 PM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Eugene, I think one can cut the cases the way you did; but one can also cut them the way I and Doug suggested. To satisfy the Roys' objection to providing the social security number, the government would have had to let them do something different (not provide the number). To satisfy Sherrod's objection, all the government has to do is renumber the statute; then it can require him to do exactly the same thing (pay the money). In that sense, Sherrod's objection is not to what he's being required to do, but to how the government has acted in its own operations (how it numbers a statute). I think that this characterization, bringing the case within Roy, is preferable because it explains the intuition that the government should win without resting on the problematic rationales that (a) the government must/can show a compelling interest/ least restrictive means in this instance -- i.e. it would be really hard to renumber this statute -- or (b) the claim is insincere or a mist! aken scriptural interpretation. Doesn't this eliminate the seeming puzzle in the case without creating any problems? My point overlaps with Doug's -- a regime allowing free exercise objections to what the government calls its laws is not manageable -- but it's narrower. I think that Nothwest Indian v. Lyng can be seen as the government doing something to the Native Americans, and not just as acting in its own sphere. Tom Berg University of St. Thomas School of Law (Minneapolis) From: [EMAIL PROTECTED] on behalf of Volokh, Eugene Sent: Thu 7/31/2008 5:57 PM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Well, I thought about Bowen v. Roy, but my sense is that the internal procedures point there was that the Roys weren't required to actually do anything that violated their religious beliefs (the government had stopped demanding that they provide Roy's social security number, and five Justices took the view that the government indeed had a constitutional obligation to so stop). The Roys just thought that the government's practice of giving Roy a number was spiritually harmful. Here, the claimant seems to be arguing not that it's bad for the government to have a section 666
Re: LOFTON / Re: Defamation of Religion
This certainly trivializes the concept of religion. A government that persecutes theists, defames religion in general, and so forth is religious? I suppose the argument is that such a government simply adopts the wrong religion. I suppose similarly each individual is religious no matter what that person's view is about the existence of God or the practice of religion. Taking this route, however, creates both conceptual and practical confusion, but one is, of course, free to take it. To what end? Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware Ratio Juris , Contributor: _ http://ratiojuris.blogspot.com/_ (http://ratiojuris.blogspot.com/) Essentially Contested America, Editor-In-Chief _http://www.essentiallycontestedamerica.org/_ (http://www.essentiallycontestedamerica.org/) In a message dated 7/31/2008 5:38:45 P.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: ALL government is religious. The only question is: Which religion will a government be based on. **Get fantasy football with free live scoring. Sign up for FanHouse Fantasy Football today. (http://www.fanhouse.com/fantasyaffair?ncid=aolspr000520) ___ 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.
Re: LOFTON / Re: Defamation of Religion
In point of fact, strictly speaking, there is no such thing that actually exists that is called religion. That's why I put it in quotes. Religion is an abstract category that no one actually practices any more than someone plays sports or eats food. Thus, I do not believe you can trivialize that which does not actually exist. As for creating conceptual and practical confusion, I believe this happens when one talks about unreal things as if they are real. In any event, if someone denies that all governments are religious in origin, and based on some kind of religion, let's test what I say. Name me a government that you say is not religious and I'll show you how it is. Thank you.? John Lofton, Editor, TheAmericanView.com Recovering Republican Accursed is that peace of which revolt from God is the bond, and blessed are those contentions by which it is necessary to maintain the kingdom of Christ. -- John Calvin. -Original Message- From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Fri, 1 Aug 2008 6:52 am Subject: Re: LOFTON / Re: Defamation of Religion This certainly trivializes the concept of religion. A government that persecutes theists, defames religion in general, and so forth is religious? I suppose the?argument is that such a government simply adopts the wrong religion.??I suppose similarly each individual is religious no matter what that person's view is about the existence of God or the practice of religion. Taking this route, however,? creates both?conceptual and practical confusion, but one is, of course, free to take it. To what end? ? Bobby ?? Robert Justin Lipkin Professor of Law Widener University School of Law Delaware Ratio Juris, Contributor:? http://ratiojuris.blogspot.com/ Essentially Contested America,?Editor-In-Chief http://www.essentiallycontestedamerica.org/ ? In a message dated 7/31/2008 5:38:45 P.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: ALL government is religious. The only question is: Which religion will a government be based on. Ratio Juris, Contributor:? http://ratiojuris.blogspot.com/ Essentially Contested America,?Editor-In-Chief http://www.essentiallycontestedamerica.org/ ? In a message dated 7/31/2008 5:38:45 P.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: ALL government is religious. The only question is: Which religion will a government be based on. ? In a message dated 7/31/2008 5:38:45 P.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: ALL government is religious. The only question is: Which religion will a government be based on. Get fantasy football with free live scoring. Sign up for FanHouse Fantasy Football today. ___ 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.
Re: LOFTON / Re: Defamation of Religion
Insisting there is no religion--it doesn't exist--but religion can nevertheless be used intelligibly (as a bracket term). suggests that one has an elaborate argument that no matter how much it might vary from ordinary intelligent discourse, he or she wants to impose on you. I think I'll pass on examining that argument, but go right ahead and articulate anyway. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware Ratio Juris , Contributor: _ http://ratiojuris.blogspot.com/_ (http://ratiojuris.blogspot.com/) Essentially Contested America, Editor-In-Chief _http://www.essentiallycontestedamerica.org/_ (http://www.essentiallycontestedamerica.org/) In a message dated 8/1/2008 10:33:28 A.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: In point of fact, strictly speaking, there is no such thing that actually exists that is called religion. That's why I put it in quotes. Religion is an abstract category that no one actually practices any more than someone plays sports or eats food. Thus, I do not believe you can trivialize that which does not actually exist. As for creating conceptual and practical confusion, I believe this happens when one talks about unreal things as if they are real. In any event, if someone denies that all governments are religious in origin, and based on some kind of religion, let's test what I say. Name me a government that you say is not religious and I'll show you how it is. Thank you. John Lofton, Editor, TheAmericanView.com Recovering Republican Accursed is that peace of which revolt from God is the bond, and blessed are those contentions by which it is necessary to maintain the kingdom of Christ. -- John Calvin. -Original Message- From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Fri, 1 Aug 2008 6:52 am Subject: Re: LOFTON / Re: Defamation of Religion This certainly trivializes the concept of religion. A government that persecutes theists, defames religion in general, and so forth is religious? I suppose the argument is that such a government simply adopts the wrong religion. I suppose similarly each individual is religious no matter what that person's view is about the existence of God or the practice of religion. Taking this route, however, creates both conceptual and practical confusion, but one is, of course, free to take it. To what end? Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware Ratio Juris , Contributor: _ http://ratiojuris.blogspot.com/_ (http://ratiojuris.blogspot.com/) _ Essentially Contested America, Editor-In-Chief _ (http://www.essentiallycontestedamerica.org/) _http://www.essentiallycontestedamerica.org/_ (http://www.essentiallycontestedamerica.org/) In a message dated 7/31/2008 5:38:45 P.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: ALL government is religious. The only question is: Which religion will a government be based on. (http://www.essentiallycontestedamerica.org/) Get fantasy football with free live scoring. _Sign up for FanHouse Fantasy Football today_ (http://www.fanhouse.com/fantasyaffair?ncid=aolspr000520) _._ (http://www.essentiallycontestedamerica.org/) ___ To post, send message to [EMAIL PROTECTED] (mailto:Religionlaw@lists.ucla.edu) _ To subscribe, unsubscribe, change options, or get password, see _ (http://www.essentiallycontestedamerica.org/) _http://lis ts.ucla.edu/cgi-bin/mailman/listinfo/religionlaw_ (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._ (http://www.essentiallycontestedamerica.org/) The Famous, the Infamous, the Lame - in your browser. _Get the TMZ Toolbar Now_ (http://toolbar.aol.com/tmz/download.html?NCID=aolcmp000514) _!_ (http://www.essentiallycontestedamerica.org/) ___ 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. **Get fantasy football with free live scoring. Sign up for FanHouse Fantasy Football today. (http://www.fanhouse.com/fantasyaffair?ncid=aolspr000520) ___ To
RE: Religious freedom and 42 USC 666
Doug: I much appreciate your responses, and you may well be right. But I'm just not quite sure about the distinction between an objection to any behavior demanded of him and an objection to the government's behavior. As I understand it, his objection is to both, or rather to the latter through the former. He says, I object to your demanding that I go along with these things that are pursuant to 42 USC 666. He's not just saying that there's something wrong with the government's keeping records on him in room 666; he's saying that he refuses to go along with what the government demands of him, because the demand is made under 42 USC 666. Indeed, in the process he's objecting to the government's behavior, but the root of it is precisely the objection to what's demanded of him -- something that wasn't the case in what remained of Bowen, or for that matter in Lyng. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, July 31, 2008 7:51 PM To: religionlaw@lists.ucla.edu Subject: RE: Religious freedom and 42 USC 666 I understand that difference. It shows that the line is not perfectly clean. few lines are. But fundamentally, this guy's religious objection is not to any behavior demanded of him. It is to the government's behavior. He says, I'll pay my child support if you the government renumber your statutes. It is the government's behavior that has to change to put him in compliance with his alleged religious beliefs, not his own behavior. Government wants him to pay $X to his wife, and he says he is perfectly willing to pay $X to his wife. But first, the government has to do something that he says is required by his religion. That is the essence of Lyng and Bowen. He is not trying to insulate his own behavior from regulation; he is trying to control the government's behavior. Quoting Volokh, Eugene [EMAIL PROTECTED]: Well, I thought about Bowen v. Roy, but my sense is that the internal procedures point there was that the Roys weren't required to actually do anything that violated their religious beliefs (the government had stopped demanding that they provide Roy's social security number, and five Justices took the view that the government indeed had a constitutional obligation to so stop). The Roys just thought that the government's practice of giving Roy a number was spiritually harmful. Here, the claimant seems to be arguing not that it's bad for the government to have a section 666 in its statutes, but that it violates his religion to comply with orders issued under that section. Presumably, if the government copied or moved this to section 777, then he'd be OK with complying, not because the government changed its internal procedures, but because the action that he would be required to do would no longer be pursuant to a statute numbered with the number of the beast. So that seems different from Bowen v. Roy, no? Eugene Tom Berg writes: To the extent that he objects to paying the support even if the provision is renumbered, because the requirement is of the antichrist and the 666 simply evidences that, then I assume most courts would hold there's a burden but it's overcome by a compelling interest. To the extent he says his objection would be cured by renumbering the provision, then doesn't this seem like Bowen v. Roy -- and therefore not a cognizable burden -- in that the numbering of a statute is a matter of the government's internal procedures like the assignment of a social security number in Roy? If renumbering the provision would meet the objection, then the objection seems separable from the payment requirement itself and thus (arguably) concerns an internal government matter. It's not clear how much the Roy principle applies to RFRAs, but this might be the explanation for rejecting his claim that fits best into the previous law. ___ 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.
RE: Religious freedom and 42 USC 666
Might it not be helpful in this context to look first at what the specific religious exercise is that is being burdened? That has the virtue of focusing the court's analysis while avoiding the vice of a forbidden centrality analysis. See Greene v. Solano County Jail, 513 F.3d 982, 988 (9th Cir. 2008). In Sherrod's case, I don't see any specific religious exercise that he can claim is being burdened. In the Lyng-like Navajo Nation case currently before the Ninth Circuit en banc, by contrast, I think the Navajo have a stronger claim than Sherrod does, since they have described specific religious exercises that are burdened by the government's action in allowing reclaimed sewage to be sprayed on mountains where they conduct religious ceremonies. Re Tom's question earlier, if San Francisco passed a law (rather than a resolution) saying Santeria is a false religion then I think the 9th Circuit said in AFA v SF that it might have decided it the other way. And under Lukumi it seems fairly clear that any such law would give rise to a colorable Free Exercise claim based on intentional discrimination. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 10:59 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Doug: I much appreciate your responses, and you may well be right. But I'm just not quite sure about the distinction between an objection to any behavior demanded of him and an objection to the government's behavior. As I understand it, his objection is to both, or rather to the latter through the former. He says, I object to your demanding that I go along with these things that are pursuant to 42 USC 666. He's not just saying that there's something wrong with the government's keeping records on him in room 666; he's saying that he refuses to go along with what the government demands of him, because the demand is made under 42 USC 666. Indeed, in the process he's objecting to the government's behavior, but the root of it is precisely the objection to what's demanded of him -- something that wasn't the case in what remained of Bowen, or for that matter in Lyng. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, July 31, 2008 7:51 PM To: religionlaw@lists.ucla.edu Subject: RE: Religious freedom and 42 USC 666 I understand that difference. It shows that the line is not perfectly clean. few lines are. But fundamentally, this guy's religious objection is not to any behavior demanded of him. It is to the government's behavior. He says, I'll pay my child support if you the government renumber your statutes. It is the government's behavior that has to change to put him in compliance with his alleged religious beliefs, not his own behavior. Government wants him to pay $X to his wife, and he says he is perfectly willing to pay $X to his wife. But first, the government has to do something that he says is required by his religion. That is the essence of Lyng and Bowen. He is not trying to insulate his own behavior from regulation; he is trying to control the government's behavior. Quoting Volokh, Eugene [EMAIL PROTECTED]: Well, I thought about Bowen v. Roy, but my sense is that the internal procedures point there was that the Roys weren't required to actually do anything that violated their religious beliefs (the government had stopped demanding that they provide Roy's social security number, and five Justices took the view that the government indeed had a constitutional obligation to so stop). The Roys just thought that the government's practice of giving Roy a number was spiritually harmful. Here, the claimant seems to be arguing not that it's bad for the government to have a section 666 in its statutes, but that it violates his religion to comply with orders issued under that section. Presumably, if the government copied or moved this to section 777, then he'd be OK with complying, not because the government changed its internal procedures, but because the action that he would be required to do would no longer be pursuant to a statute numbered with the number of the beast. So that seems different from Bowen v. Roy, no? Eugene Tom Berg writes: To the extent that he objects to paying the support even if the provision is renumbered, because the requirement is of the antichrist and the 666 simply evidences that, then I assume most courts would hold there's a burden but it's overcome by a compelling interest. To the extent he says his objection would be cured by renumbering the provision, then doesn't this seem like Bowen v. Roy -- and therefore not a cognizable burden -- in that the numbering of a statute is a matter of the government's internal procedures like the assignment of a social security number in Roy? If
RE: Religious freedom and 42 USC 666
Actually, I think the same combined elements were present in Bowen, even with the social security number already in the government's hands - the claimant objected to participating in the program by applying for and receiving benefits that would, in his view, rob the child's soul because the government would be using a social security number and not her name. So, in effect, he was objecting to what was being demanded of him - applying for at least receiving benefits, cashing checks, using the money, etc. - in light of what the government was doing internally. Right? That said, I think Doug's explanation of the internal operations cases is quite cogent. Dan Conkle *** Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] *** From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 10:59 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Doug: I much appreciate your responses, and you may well be right. But I'm just not quite sure about the distinction between an objection to any behavior demanded of him and an objection to the government's behavior. As I understand it, his objection is to both, or rather to the latter through the former. He says, I object to your demanding that I go along with these things that are pursuant to 42 USC 666. He's not just saying that there's something wrong with the government's keeping records on him in room 666; he's saying that he refuses to go along with what the government demands of him, because the demand is made under 42 USC 666. Indeed, in the process he's objecting to the government's behavior, but the root of it is precisely the objection to what's demanded of him -- something that wasn't the case in what remained of Bowen, or for that matter in Lyng. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, July 31, 2008 7:51 PM To: religionlaw@lists.ucla.edu Subject: RE: Religious freedom and 42 USC 666 I understand that difference. It shows that the line is not perfectly clean. few lines are. But fundamentally, this guy's religious objection is not to any behavior demanded of him. It is to the government's behavior. He says, I'll pay my child support if you the government renumber your statutes. It is the government's behavior that has to change to put him in compliance with his alleged religious beliefs, not his own behavior. Government wants him to pay $X to his wife, and he says he is perfectly willing to pay $X to his wife. But first, the government has to do something that he says is required by his religion. That is the essence of Lyng and Bowen. He is not trying to insulate his own behavior from regulation; he is trying to control the government's behavior. Quoting Volokh, Eugene [EMAIL PROTECTED]: Well, I thought about Bowen v. Roy, but my sense is that the internal procedures point there was that the Roys weren't required to actually do anything that violated their religious beliefs (the government had stopped demanding that they provide Roy's social security number, and five Justices took the view that the government indeed had a constitutional obligation to so stop). The Roys just thought that the government's practice of giving Roy a number was spiritually harmful. Here, the claimant seems to be arguing not that it's bad for the government to have a section 666 in its statutes, but that it violates his religion to comply with orders issued under that section. Presumably, if the government copied or moved this to section 777, then he'd be OK with complying, not because the government changed its internal procedures, but because the action that he would be required to do would no longer be pursuant to a statute numbered with the number of the beast. So that seems different from Bowen v. Roy, no? Eugene Tom Berg writes: To the extent that he objects to paying the support even if the provision is renumbered, because the requirement is of the antichrist and the 666 simply evidences that, then I assume most courts would hold there's a burden but it's overcome by a compelling interest. To the extent he says his objection would be cured by renumbering the provision, then doesn't this seem like Bowen v. Roy -- and therefore not a cognizable burden -- in that the numbering of a statute is a matter of the government's internal procedures like the assignment of a social security number in Roy? If renumbering the provision would meet the objection, then the objection seems separable from the payment requirement itself and thus (arguably) concerns
RE: Religious freedom and 42 USC 666
Perhaps Doug, Dan, and others are right that the case is enough like Bowen v. Roy to be disposed of by that precedent. But it seems to there is a specific religious exercise being burdened, in the sense of a specific religious prohibition that Sherrod doesn't want to violate: He thinks it's wrong for him to comply with orders issued under the Beast-numbered section, just as Thomas thought it was wrong for him to work on producing munitions, or Sherbert thought it was wrong for her to work on Saturdays. It's true that this is interference with a negative command (don't participate in Beast-authorized things) and not a positive command (do perform this particular ritual), but that distinction has rightly never made a difference in religious accommodation cases. Or am I missing something here? Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach Sent: Friday, August 01, 2008 8:19 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Might it not be helpful in this context to look first at what the specific religious exercise is that is being burdened? That has the virtue of focusing the court's analysis while avoiding the vice of a forbidden centrality analysis. See Greene v. Solano County Jail, 513 F.3d 982, 988 (9th Cir. 2008). In Sherrod's case, I don't see any specific religious exercise that he can claim is being burdened. In the Lyng-like Navajo Nation case currently before the Ninth Circuit en banc, by contrast, I think the Navajo have a stronger claim than Sherrod does, since they have described specific religious exercises that are burdened by the government's action in allowing reclaimed sewage to be sprayed on mountains where they conduct religious ceremonies. Re Tom's question earlier, if San Francisco passed a law (rather than a resolution) saying Santeria is a false religion then I think the 9th Circuit said in AFA v SF that it might have decided it the other way. And under Lukumi it seems fairly clear that any such law would give rise to a colorable Free Exercise claim based on intentional discrimination. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 10:59 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Doug: I much appreciate your responses, and you may well be right. But I'm just not quite sure about the distinction between an objection to any behavior demanded of him and an objection to the government's behavior. As I understand it, his objection is to both, or rather to the latter through the former. He says, I object to your demanding that I go along with these things that are pursuant to 42 USC 666. He's not just saying that there's something wrong with the government's keeping records on him in room 666; he's saying that he refuses to go along with what the government demands of him, because the demand is made under 42 USC 666. Indeed, in the process he's objecting to the government's behavior, but the root of it is precisely the objection to what's demanded of him -- something that wasn't the case in what remained of Bowen, or for that matter in Lyng. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, July 31, 2008 7:51 PM To: religionlaw@lists.ucla.edu Subject: RE: Religious freedom and 42 USC 666 I understand that difference. It shows that the line is not perfectly clean. few lines are. But fundamentally, this guy's religious objection is not to any behavior demanded of him. It is to the government's behavior. He says, I'll pay my child support if you the government renumber your statutes. It is the government's behavior that has to change to put him in compliance with his alleged religious beliefs, not his own behavior. Government wants him to pay $X to his wife, and he says he is perfectly willing to pay $X to his wife. But first, the government has to do something that he says is required by his religion. That is the essence of Lyng and Bowen. He is not trying to insulate his own behavior from regulation; he is trying to control the government's behavior. Quoting Volokh, Eugene [EMAIL PROTECTED]: Well, I thought about Bowen v. Roy, but my sense is that the internal procedures point there was that the Roys weren't required to actually do anything that violated their religious beliefs (the government had
RE: Religious freedom and 42 USC 666
As Eugene suggests, I think the burden, in reality, is indeed no different than in other contexts. What's different is the unmanageability of such claims, so it's something of a legal fiction to say that there is no burden. Better, perhaps, to say that there is no *constitutionally cognizable* burden, which is language the Supreme Court itself has used, if I'm not mistaken. Dan Conkle *** Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] *** From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 11:42 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Perhaps Doug, Dan, and others are right that the case is enough like Bowen v. Roy to be disposed of by that precedent. But it seems to there is a specific religious exercise being burdened, in the sense of a specific religious prohibition that Sherrod doesn't want to violate: He thinks it's wrong for him to comply with orders issued under the Beast-numbered section, just as Thomas thought it was wrong for him to work on producing munitions, or Sherbert thought it was wrong for her to work on Saturdays. It's true that this is interference with a negative command (don't participate in Beast-authorized things) and not a positive command (do perform this particular ritual), but that distinction has rightly never made a difference in religious accommodation cases. Or am I missing something here? Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach Sent: Friday, August 01, 2008 8:19 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Might it not be helpful in this context to look first at what the specific religious exercise is that is being burdened? That has the virtue of focusing the court's analysis while avoiding the vice of a forbidden centrality analysis. See Greene v. Solano County Jail, 513 F.3d 982, 988 (9th Cir. 2008). In Sherrod's case, I don't see any specific religious exercise that he can claim is being burdened. In the Lyng-like Navajo Nation case currently before the Ninth Circuit en banc, by contrast, I think the Navajo have a stronger claim than Sherrod does, since they have described specific religious exercises that are burdened by the government's action in allowing reclaimed sewage to be sprayed on mountains where they conduct religious ceremonies. Re Tom's question earlier, if San Francisco passed a law (rather than a resolution) saying Santeria is a false religion then I think the 9th Circuit said in AFA v SF that it might have decided it the other way. And under Lukumi it seems fairly clear that any such law would give rise to a colorable Free Exercise claim based on intentional discrimination. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 10:59 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Doug: I much appreciate your responses, and you may well be right. But I'm just not quite sure about the distinction between an objection to any behavior demanded of him and an objection to the government's behavior. As I understand it, his objection is to both, or rather to the latter through the former. He says, I object to your demanding that I go along with these things that are pursuant to 42 USC 666. He's not just saying that there's something wrong with the government's keeping records on him in room 666; he's saying that he refuses to go along with what the government demands of him, because the demand is made under 42 USC 666. Indeed, in the process he's objecting to the government's behavior, but the root of it is precisely the objection to what's demanded of him -- something that wasn't the case in what remained of Bowen, or for that matter in Lyng. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, July 31, 2008 7:51 PM To: religionlaw@lists.ucla.edu Subject: RE: Religious freedom and 42 USC 666 I understand that difference. It shows that the line is not perfectly clean. few lines are. But fundamentally, this guy's religious objection is not to any behavior demanded of him. It is to the government's behavior. He says, I'll pay my child support if you the government renumber your statutes. It is the government's behavior that has to change to put him in compliance with his alleged religious beliefs, not his own behavior. Government wants him to pay $X to his wife, and he says he is perfectly willing to pay $X to his wife.
RE: Religious freedom and 42 USC 666
The line delineating kinds of burdens here gets pretty thin. Is Sherrod claiming a right not to participate in Beast-authorized things or a right not to associate with the Mark of the Beast? The latter could be incredibly broad. Under your analysis, Eugene, would there be a difference between these two arguments? What if someone argued that it violated their faith to comply with laws voted on by non-believers (of their particular religion]? Mike Newdow has a RFRA claim before the Ninth circuit (I think it is still pending) in which he claims that having In God We Trust on currency violates his ability to exercise his religion. (He asserts a religion of Atheism in the case.) Newdow argues that the members of his Church can't even pass the plate to collect donations during services without being forced to communicate a message that repudiates their beliefs. Does that raise a cognizable RFRA or free exercise claim, Eugene? This issue may be more commonly addressed under the Establishment Clause, Tom. Does that mean there isn't a free exercise issue here as well? Alan Brownstein UC Davis School of Law From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 8:42 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Perhaps Doug, Dan, and others are right that the case is enough like Bowen v. Roy to be disposed of by that precedent. But it seems to there is a specific religious exercise being burdened, in the sense of a specific religious prohibition that Sherrod doesn't want to violate: He thinks it's wrong for him to comply with orders issued under the Beast-numbered section, just as Thomas thought it was wrong for him to work on producing munitions, or Sherbert thought it was wrong for her to work on Saturdays. It's true that this is interference with a negative command (don't participate in Beast-authorized things) and not a positive command (do perform this particular ritual), but that distinction has rightly never made a difference in religious accommodation cases. Or am I missing something here? Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach Sent: Friday, August 01, 2008 8:19 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Might it not be helpful in this context to look first at what the specific religious exercise is that is being burdened? That has the virtue of focusing the court's analysis while avoiding the vice of a forbidden centrality analysis. See Greene v. Solano County Jail, 513 F.3d 982, 988 (9th Cir. 2008). In Sherrod's case, I don't see any specific religious exercise that he can claim is being burdened. In the Lyng-like Navajo Nation case currently before the Ninth Circuit en banc, by contrast, I think the Navajo have a stronger claim than Sherrod does, since they have described specific religious exercises that are burdened by the government's action in allowing reclaimed sewage to be sprayed on mountains where they conduct religious ceremonies. Re Tom's question earlier, if San Francisco passed a law (rather than a resolution) saying Santeria is a false religion then I think the 9th Circuit said in AFA v SF that it might have decided it the other way. And under Lukumi it seems fairly clear that any such law would give rise to a colorable Free Exercise claim based on intentional discrimination. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 10:59 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Doug: I much appreciate your responses, and you may well be right. But I'm just not quite sure about the distinction between an objection to any behavior demanded of him and an objection to the government's behavior. As I understand it, his objection is to both, or rather to the latter through the former. He says, I object to your demanding that I go along with these things that are pursuant to 42 USC 666. He's not just saying that there's something wrong with the government's keeping records on him in room 666; he's saying that he refuses to go along with what the government demands of him, because the demand is made under 42 USC 666. Indeed, in the process he's objecting to the government's behavior, but the root of it is precisely the objection to what's demanded of him -- something that wasn't the case in what remained of Bowen, or for that matter in Lyng. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, July 31, 2008 7:51 PM To: religionlaw@lists.ucla.edu Subject: RE: Religious freedom and 42 USC 666 I understand that difference. It shows that the line is not perfectly clean. few lines are. But
RE: Religious freedom and 42 USC 666
I'm inclined to say that Sherrod's claim is, as the court characterizes it, that it is wrong to submit to an order which relies for its authority upon a federal statute, 42 USC 666, or, put another way, to cooperate in any way with the State's attempt to enforce his obligation of child support [using that statute]. It's hard for me to see why requiring one to submit such an order wouldn't be a substantial burden, but requiring one to work on munitions would be. As to the Newdow claim, the matter is complex, because he's not strictly required to use government currency, and these days might not even be practically required, since he could ask people to write checks. Rather, if his claim is that it is spiritually prohibited to him (and not just offensive to him) to use currency with God's name on it, he would also have to show that the government's action in coercively prohibiting rival currency is what's causing the interference with his religious practice. Finally, if someone thinks that God forbids him from complying with laws voted on by nonbelievers, then it seems to me that ordering such compliance would certainly substantially burden his religion -- there just wouldn't be any less restrictive alternatives that don't themselves cause serious constitutional problems. But as to 42 USC 666, there is a pretty simple alternative -- create a copy of the statute in 42 USC 777 (or some such). From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan Sent: Friday, August 01, 2008 9:48 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 The line delineating kinds of burdens here gets pretty thin. Is Sherrod claiming a right not to participate in Beast-authorized things or a right not to associate with the Mark of the Beast? The latter could be incredibly broad. Under your analysis, Eugene, would there be a difference between these two arguments? What if someone argued that it violated their faith to comply with laws voted on by non-believers (of their particular religion]? Mike Newdow has a RFRA claim before the Ninth circuit (I think it is still pending) in which he claims that having In God We Trust on currency violates his ability to exercise his religion. (He asserts a religion of Atheism in the case.) Newdow argues that the members of his Church can't even pass the plate to collect donations during services without being forced to communicate a message that repudiates their beliefs. Does that raise a cognizable RFRA or free exercise claim, Eugene? This issue may be more commonly addressed under the Establishment Clause, Tom. Does that mean there isn't a free exercise issue here as well? Alan Brownstein UC Davis School of Law From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 8:42 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Perhaps Doug, Dan, and others are right that the case is enough like Bowen v. Roy to be disposed of by that precedent. But it seems to there is a specific religious exercise being burdened, in the sense of a specific religious prohibition that Sherrod doesn't want to violate: He thinks it's wrong for him to comply with orders issued under the Beast-numbered section, just as Thomas thought it was wrong for him to work on producing munitions, or Sherbert thought it was wrong for her to work on Saturdays. It's true that this is interference with a negative command (don't participate in Beast-authorized things) and not a positive command (do perform this particular ritual), but that distinction has rightly never made a difference in religious accommodation cases. Or am I missing something here? Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach Sent: Friday, August 01, 2008 8:19 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Might it not be helpful in this context to look first at what the specific religious exercise is that is being burdened? That has the virtue of focusing the court's analysis while avoiding the vice of a forbidden centrality analysis. See Greene v. Solano County Jail, 513 F.3d 982, 988 (9th Cir. 2008). In Sherrod's case, I don't see any specific religious exercise that he can claim is being burdened. In the Lyng-like Navajo Nation case currently before the Ninth Circuit en banc, by contrast, I think the Navajo have a stronger claim than Sherrod does, since they
RE: Religious freedom and 42 USC 666
I appreciate the concerns about the manageability of such claims, but I wonder exactly what we mean by unmanageability. Most granted exemption requests generally require considerable changes to government procedures -- the government may have to set up hearing mechanisms, alternative surveillance and investigation mechanisms that are needed to serve its interests (consider some of the proposed alternatives in the peyote case, aimed at making sure the peyote is indeed used responsibly, children can't get access to it, and the like), schemes for informing employees about what the rules are, devices for making sure that the rules are applied fairly, and so on. Here, by comparison, the change is high-level (it requires a Congressional act) but otherwise relatively cheap: Copy 42 USC 666 to 42 USC 777. Or is the concern one about management of subsequent claims by others who have other objections? That concern, after all, arises often with regard to traditional exemption requests, too. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Conkle, Daniel O. Sent: Friday, August 01, 2008 8:57 AM To: 'Law Religion issues for Law Academics' Subject: RE: Religious freedom and 42 USC 666 As Eugene suggests, I think the burden, in reality, is indeed no different than in other contexts. What's different is the unmanageability of such claims, so it's something of a legal fiction to say that there is no burden. Better, perhaps, to say that there is no *constitutionally cognizable* burden, which is language the Supreme Court itself has used, if I'm not mistaken. Dan Conkle *** Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] *** From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 11:42 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Perhaps Doug, Dan, and others are right that the case is enough like Bowen v. Roy to be disposed of by that precedent. But it seems to there is a specific religious exercise being burdened, in the sense of a specific religious prohibition that Sherrod doesn't want to violate: He thinks it's wrong for him to comply with orders issued under the Beast-numbered section, just as Thomas thought it was wrong for him to work on producing munitions, or Sherbert thought it was wrong for her to work on Saturdays. It's true that this is interference with a negative command (don't participate in Beast-authorized things) and not a positive command (do perform this particular ritual), but that distinction has rightly never made a difference in religious accommodation cases. Or am I missing something here? Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach Sent: Friday, August 01, 2008 8:19 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Might it not be helpful in this context to look first at what the specific religious exercise is that is being burdened? That has the virtue of focusing the court's analysis while avoiding the vice of a forbidden centrality analysis. See Greene v. Solano County Jail, 513 F.3d 982, 988 (9th Cir. 2008). In Sherrod's case, I don't see any specific religious exercise that he can claim is being burdened. In the Lyng-like Navajo Nation case currently before the Ninth Circuit en banc, by contrast, I think the Navajo have a stronger claim than Sherrod does, since they have described specific religious exercises that are burdened by the government's action in allowing reclaimed sewage to be sprayed on mountains where they conduct religious ceremonies. Re Tom's question earlier, if San Francisco passed a law (rather than a resolution) saying Santeria is a false religion then I think the 9th Circuit said in AFA v SF that it might have decided it the other way. And under Lukumi it seems fairly clear that any such law would give rise to a colorable Free Exercise claim based on intentional discrimination. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 10:59 AM To: Law
RE: Religious freedom and 42 USC 666
It is worth noting that, although the opinion is a bit unclear, the actual penalty imposed on Sherrod for failing to comply with the lower court's order to send his child support payments to the state DHS (in compliance with state laws required in turn by Section 666) appears to be that he will have his federal income tax refund intercepted. The refund would be offset against the child support amounts he owes and already agrees he should pay to his wife. So arguably there's no burden at all since he hasn't suffered any detriment for failing to cooperate with the Section 666-inspired order. And my guess is that intercepting his tax refund is also more manageable for the government than changing 42 USC 666 to 42 USC 777 would be. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 1:19 PM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 I appreciate the concerns about the manageability of such claims, but I wonder exactly what we mean by unmanageability. Most granted exemption requests generally require considerable changes to government procedures -- the government may have to set up hearing mechanisms, alternative surveillance and investigation mechanisms that are needed to serve its interests (consider some of the proposed alternatives in the peyote case, aimed at making sure the peyote is indeed used responsibly, children can't get access to it, and the like), schemes for informing employees about what the rules are, devices for making sure that the rules are applied fairly, and so on. Here, by comparison, the change is high-level (it requires a Congressional act) but otherwise relatively cheap: Copy 42 USC 666 to 42 USC 777. Or is the concern one about management of subsequent claims by others who have other objections? That concern, after all, arises often with regard to traditional exemption requests, too. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Conkle, Daniel O. Sent: Friday, August 01, 2008 8:57 AM To: 'Law Religion issues for Law Academics' Subject: RE: Religious freedom and 42 USC 666 As Eugene suggests, I think the burden, in reality, is indeed no different than in other contexts. What's different is the unmanageability of such claims, so it's something of a legal fiction to say that there is no burden. Better, perhaps, to say that there is no *constitutionally cognizable* burden, which is language the Supreme Court itself has used, if I'm not mistaken. Dan Conkle *** Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] *** From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 11:42 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Perhaps Doug, Dan, and others are right that the case is enough like Bowen v. Roy to be disposed of by that precedent. But it seems to there is a specific religious exercise being burdened, in the sense of a specific religious prohibition that Sherrod doesn't want to violate: He thinks it's wrong for him to comply with orders issued under the Beast-numbered section, just as Thomas thought it was wrong for him to work on producing munitions, or Sherbert thought it was wrong for her to work on Saturdays. It's true that this is interference with a negative command (don't participate in Beast-authorized things) and not a positive command (do perform this particular ritual), but that distinction has rightly never made a difference in religious accommodation cases. Or am I missing something here? Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach Sent: Friday, August 01, 2008 8:19 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Might it not be helpful in this context to look first at what the specific religious exercise is that is being burdened? That has the virtue of focusing the court's analysis while avoiding the vice of a forbidden centrality analysis. See Greene v. Solano County Jail, 513 F.3d 982, 988 (9th Cir. 2008). In Sherrod's case, I don't see any specific religious exercise that he can claim is being burdened. In the Lyng-like Navajo Nation case currently before the Ninth Circuit en banc, by contrast, I think the Navajo have a stronger claim than Sherrod does, since they have described specific religious exercises that are burdened by the government's action in allowing reclaimed sewage to be sprayed on mountains where they conduct religious ceremonies. Re Tom's question
RE: Religious freedom and 42 USC 666
Perhaps this is indeed so on the facts of this particular case; but I take it in a future case, there might be no tax refund to offset this against, no? Eugene Eric Rassbach writes: From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach Sent: Friday, August 01, 2008 10:34 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 It is worth noting that, although the opinion is a bit unclear, the actual penalty imposed on Sherrod for failing to comply with the lower court's order to send his child support payments to the state DHS (in compliance with state laws required in turn by Section 666) appears to be that he will have his federal income tax refund intercepted. The refund would be offset against the child support amounts he owes and already agrees he should pay to his wife. So arguably there's no burden at all since he hasn't suffered any detriment for failing to cooperate with the Section 666-inspired order. And my guess is that intercepting his tax refund is also more manageable for the government than changing 42 USC 666 to 42 USC 777 would be. ___ 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.
Re: Religious freedom and 42 USC 666
I'm not even sure the necessary change would require an Act of Congress. Someone can correct me if I'm wrong, but I don't think a statute's codification in the US Code is generally a part of the bill enacted by Congress. If you look at the Statutes at Large, you'll see the future codification in the margin, not in the text. I think codification is just an administrative function. And I assume it would be sufficient for the father here if 42 USC § 666 were changed to 42 USC § 665a, so it wouldn't even have to be moved to a different position in the books. Art Spitzer ACLU Washington DC In a message dated 8/1/08 1:19:42 PM, [EMAIL PROTECTED] writes: Here, by comparison, the change is high-level (it requires a Congressional act) but otherwise relatively cheap: Copy 42 USC 666 to 42 USC 777. ** Looking for a car that's sporty, fun and fits in your budget? Read reviews on AOL Autos. (http://autos.aol.com/cars-BMW-128-2008/expert-review?ncid=aolaut000517 ) ___ 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.
RE: Religious freedom and 42 USC 666
True, but after that I imagine the government would put a lien on his personal property or use other methods short of prison to enforce the judgment against him. Since he's agreed that he is obligated to pay, and would having no problem paying his wife or the trial court directly, none of these methods of extracting child support payments from him without his cooperation would seem to burden his religious exercise, precisely because it is mere cooperation with one part of the government that he feels would violate his religious beliefs. A harder question under SB would be if he had a sincere belief that he should not pay child support at all; but that would likely be disposed of under the CGI/LRM analysis. It seems important in substantial burden cases, be it under RFRA, state RFRAs, RLUIPA or Sherbert/Yoder, for courts to first look at what the specific claimed religious exercise (negative or positive) is, whether that exercise is sincere, and what the burden or penalty imposed for engaging in the exercise is. A lot of the claimed problems with RLUIPA and the RFRAs disappear if these standards are applied universally, especially when the relative prevalence of different classes of cases is factored in. For example, lack of sincerity is something that should eliminate a significant number of prisoner RLUIPA claims, but prison systems and courts have been reluctant to uniformly apply that standard before reaching the SB analysis. If a sincerity filter were applied regularly by prison systems and the courts, then a number of harder RLUIPA prisoner cases would be eliminated without raising unnecessary SB or constitutional questions. (Perhaps even Sherrod's case would have been eliminated.) Also, in my view the occasional accommodation of a sincere Sherrod-like plaintiff who could demonstrate a true burden would seem to be worth the benefit of protecting the religious liberty of a great number of people. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 1:42 PM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Perhaps this is indeed so on the facts of this particular case; but I take it in a future case, there might be no tax refund to offset this against, no? Eugene Eric Rassbach writes: From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach Sent: Friday, August 01, 2008 10:34 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 It is worth noting that, although the opinion is a bit unclear, the actual penalty imposed on Sherrod for failing to comply with the lower court's order to send his child support payments to the state DHS (in compliance with state laws required in turn by Section 666) appears to be that he will have his federal income tax refund intercepted. The refund would be offset against the child support amounts he owes and already agrees he should pay to his wife. So arguably there's no burden at all since he hasn't suffered any detriment for failing to cooperate with the Section 666-inspired order. And my guess is that intercepting his tax refund is also more manageable for the government than changing 42 USC 666 to 42 USC 777 would be. ___ 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.
RE: Religious freedom and 42 USC 666
Except that sometimes, I think the drafters do it right in the bill. If they are amending existing legislation that has already been numbered, and they are inserting new sections, I think that the bill sometimes numbers those sections. So Section 2 of the bill may amend section 665 of the existing Act and add a new section 666. I'm pretty sure I've seen examples of this, although I can't swear to it. If the bill number is created by an Act of Congress, then I suppose it takes another Act of Congress to change it. Which is why you occasionally see bills to correct typos. Quoting Corcos, Christine [EMAIL PROTECTED]: I think it's done by the Office of the Law Revision Counsel of the U.S. House of Representatives. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Friday, August 01, 2008 2:01 PM To: religionlaw@lists.ucla.edu Subject: Re: Religious freedom and 42 USC 666 I'm not even sure the necessary change would require an Act of Congress. Someone can correct me if I'm wrong, but I don't think a statute's codification in the US Code is generally a part of the bill enacted by Congress. If you look at the Statutes at Large, you'll see the future codification in the margin, not in the text. I think codification is just an administrative function. And I assume it would be sufficient for the father here if 42 USC § 666 were changed to 42 USC § 665a, so it wouldn't even have to be moved to a different position in the books. Art Spitzer ACLU Washington DC In a message dated 8/1/08 1:19:42 PM, [EMAIL PROTECTED] writes: Here, by comparison, the change is high-level (it requires a Congressional act) but otherwise relatively cheap: Copy 42 USC 666 to 42 USC 777. ** Looking for a car that's sporty, fun and fits in your budget? Read reviews on AOL Autos. (http://autos.aol.com/cars-BMW-128-2008/expert-review?ncid=aolaut000517[1] ) Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 Links: -- [1] http://autos.aol.com/cars-BMW-128-2008/expert-review?ncid=aolaut000517___ 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.
Lack of sincerity
I agree that, in principle, lack of sincerity rightly defeats a RFRA etc. claim. But in practice, my sense is that many judges are reluctant to find claimants to be insincere. Outside the prison context, I've seen very few cases in which the judge made such a finding. Even in Sherrod's case, the trial court said Mr. Sherrod's religious beliefs are deemed to be sincere, which sounds like a finding and not just an arguendo assumption (though deemed is somewhat ambiguous). Part of this, I expect, is judges' recognition of just how hard it is to come to a confident conclusion about a person's sincerity in such situations, where some of our tools for determining sincerity don't apply. Courts are rightly not supposed to look at whether the person's claimed beliefs are shared by others; they're rightly not supposed to look at whether the person's claimed beliefs are rational or logical; they're rightly not supposed to look at whether the person's claimed beliefs are consistent with the writings that the person is claiming to rely on. What else are they supposed to do? Sure, they can look at demeanor evidence, but that's notoriously unreliable; they can look at self-interest, but some sincere religious beliefs are also self-interested, and the self-interest is often hard to figure out in certain cases (especially if the person has spent a lot of time, effort, and money fighting something). Another part might be procedural: I assume that at least in some situations, sincerity -- as a factual question -- can't be determined until trial, sometimes a jury trial. If the other side wants a decision before trial, that can't happen on sincerity grounds. And a third part has to do with concerns about future litigation: If a claim is rejected on the grounds that this person is insincere, the decision has no precedential value that can help the government deal with similar objection in the future. In theory, even the very same person might later raise a similar claim in front of a different judge, and claim that his beliefs have changed to the point that they are sincere now even if they weren't sincere then; certainly plenty of others could make similar claims. Am I missing something here? Can sincerity be dealt with in a way that makes it a more helpful practical gatekeeper? Eugene Eric Rassbach writes: It seems important in substantial burden cases, be it under RFRA, state RFRAs, RLUIPA or Sherbert/Yoder, for courts to first look at what the specific claimed religious exercise (negative or positive) is, whether that exercise is sincere, and what the burden or penalty imposed for engaging in the exercise is. A lot of the claimed problems with RLUIPA and the RFRAs disappear if these standards are applied universally, especially when the relative prevalence of different classes of cases is factored in. For example, lack of sincerity is something that should eliminate a significant number of prisoner RLUIPA claims, but prison systems and courts have been reluctant to uniformly apply that standard before reaching the SB analysis. If a sincerity filter were applied regularly by prison systems and the courts, then a number of harder RLUIPA prisoner cases would be eliminated without raising unnecessary SB or constitutional questions. (Perhaps even Sherrod's case would have been eliminated.) Also, in my view the occasional accommodation of a sincere Sherrod-like plaintiff who could demonstrate a true burden would seem to be worth the benefit of protecting the religious liberty of a great number of people. ___ 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.
Re: Religious freedom and 42 USC 666
Yes, I think what Prof. Laycock says is also true. And it's probably true that if congressional action were needed, a change from 666 to 665a could be included in a long list of technical corrections attached to some omnibus bill, and no Member would even notice it. But I'm not sure a court could order Congress to do that, while a court could (at least more likely could) order the Office of the Law Revision Counsel to make such a change. But I suppose I'm straying from religion and the law. Art Spitzer In a message dated 8/1/08 3:35:27 PM, [EMAIL PROTECTED] writes: Except that sometimes, I think the drafters do it right in the bill. If they are amending existing legislation that has already been numbered, and they are inserting new sections, I think that the bill sometimes numbers those sections. So Section 2 of the bill may amend section 665 of the existing Act and add a new section 666. I'm pretty sure I've seen examples of this, although I can't swear to it. If the bill number is created by an Act of Congress, then I suppose it takes another Act of Congress to change it. Which is why you occasionally see bills to correct typos. ** Looking for a car that's sporty, fun and fits in your budget? Read reviews on AOL Autos. (http://autos.aol.com/cars-BMW-128-2008/expert-review?ncid=aolaut000517 ) ___ 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.
RE: Religious freedom and 42 USC 666
In Dr. Newdow's challenges to the Pledge of Allegiance (codified at 4 U.S.C. Section 4) he has sued both the United States Congress and the Law Revision Counsel, and has sought an order that the Law Revision Counsel strike the words under God from that Section. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Friday, August 01, 2008 3:45 PM To: religionlaw@lists.ucla.edu Subject: Re: Religious freedom and 42 USC 666 Yes, I think what Prof. Laycock says is also true. And it's probably true that if congressional action were needed, a change from 666 to 665a could be included in a long list of technical corrections attached to some omnibus bill, and no Member would even notice it. But I'm not sure a court could order Congress to do that, while a court could (at least more likely could) order the Office of the Law Revision Counsel to make such a change. But I suppose I'm straying from religion and the law. Art Spitzer In a message dated 8/1/08 3:35:27 PM, [EMAIL PROTECTED] writes: Except that sometimes, I think the drafters do it right in the bill. If they are amending existing legislation that has already been numbered, and they are inserting new sections, I think that the bill sometimes numbers those sections. So Section 2 of the bill may amend section 665 of the existing Act and add a new section 666. I'm pretty sure I've seen examples of this, although I can't swear to it. If the bill number is created by an Act of Congress, then I suppose it takes another Act of Congress to change it. Which is why you occasionally see bills to correct typos. ** Looking for a car that's sporty, fun and fits in your budget? Read reviews on AOL Autos. (http://autos.aol.com/cars-BMW-128-2008/expert-review?ncid=aolaut000517 ) ___ 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.
Re: Lack of sincerity
I think Eugene is dead on about why judges concede sincerity. What's missing from his analysis is the frequent insincerity of the finding of sincerity -- and the costs of that practice. Nat Lewin, who often represents Orthodox Jewish groups in religious liberty cases, said this years ago, and he persuaded me. Judges often say that a plaintiff is sincere, or that the judge assumes he is sincere, without actually believing that he's sincere. Then, since an insincere plaintiff should lose, they make sure he loses on some other ground, usually burden or compelling interest -- even if they have to interpret those issues in ways that undermine the whole purpose of the statute or constitutional provision they claim to be enforcing. And so we get bad precedents on burden and compelling interest, created for the insincere plaintiff but applicable to all plaintiffs, sincere and insincere alilke. Of course this is easy to suspect and hard to prove. But I think it goes on. Quoting Volokh, Eugene [EMAIL PROTECTED]: I agree that, in principle, lack of sincerity rightly defeats a RFRA etc. claim. But in practice, my sense is that many judges are reluctant to find claimants to be insincere. Outside the prison context, I've seen very few cases in which the judge made such a finding. Even in Sherrod's case, the trial court said Mr. Sherrod's religious beliefs are deemed to be sincere, which sounds like a finding and not just an arguendo assumption (though deemed is somewhat ambiguous). Part of this, I expect, is judges' recognition of just how hard it is to come to a confident conclusion about a person's sincerity in such situations, where some of our tools for determining sincerity don't apply. Courts are rightly not supposed to look at whether the person's claimed beliefs are shared by others; they're rightly not supposed to look at whether the person's claimed beliefs are rational or logical; they're rightly not supposed to look at whether the person's claimed beliefs are consistent with the writings that the person is claiming to rely on. What else are they supposed to do? Sure, they can look at demeanor evidence, but that's notoriously unreliable; they can look at self-interest, but some sincere religious beliefs are also self-interested, and the self-interest is often hard to figure out in certain cases (especially if the person has spent a lot of time, effort, and money fighting something). Another part might be procedural: I assume that at least in some situations, sincerity -- as a factual question -- can't be determined until trial, sometimes a jury trial. If the other side wants a decision before trial, that can't happen on sincerity grounds. And a third part has to do with concerns about future litigation: If a claim is rejected on the grounds that this person is insincere, the decision has no precedential value that can help the government deal with similar objection in the future. In theory, even the very same person might later raise a similar claim in front of a different judge, and claim that his beliefs have changed to the point that they are sincere now even if they weren't sincere then; certainly plenty of others could make similar claims. Am I missing something here? Can sincerity be dealt with in a way that makes it a more helpful practical gatekeeper? Eugene Eric Rassbach writes: It seems important in substantial burden cases, be it under RFRA, state RFRAs, RLUIPA or Sherbert/Yoder, for courts to first look at what the specific claimed religious exercise (negative or positive) is, whether that exercise is sincere, and what the burden or penalty imposed for engaging in the exercise is. A lot of the claimed problems with RLUIPA and the RFRAs disappear if these standards are applied universally, especially when the relative prevalence of different classes of cases is factored in. For example, lack of sincerity is something that should eliminate a significant number of prisoner RLUIPA claims, but prison systems and courts have been reluctant to uniformly apply that standard before reaching the SB analysis. If a sincerity filter were applied regularly by prison systems and the courts, then a number of harder RLUIPA prisoner cases would be eliminated without raising unnecessary SB or constitutional questions. (Perhaps even Sherrod's case would have been eliminated.) Also, in my view the occasional accommodation of a sincere Sherrod-like plaintiff who could demonstrate a true burden would seem to be worth the benefit of protecting the religious liberty of a great number of people. ___ 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[1] Please note that messages sent to this large
RE: Lack of sincerity
I agree that judges (and government agencies) are reluctant to make sincerity findings, even in the prisoner context where sincerity is an acknowledged problem. But I think it would be useful for these judges to apply a sincerity test where they can, since it is a predicate factual question to almost every religious liberty claim. And although I take on board Eugene's points below, I think there are some indicia that can properly be used to evaluate sincerity. Self-interest or ulterior motive is often a very good indicator in the prison context, cf. Church of the New Song, but also elsewhere. We here are contacted fairly frequently by folks who want to start a Church of Marijuana or start an otherwise banned Church of Universal Love and Music outdoor concert series. Courts should not be bashful about deciding, based on the emphasis on the ulterior motive and demeanor, that these potential plaintiffs are insincere. I think a court can also look at the history of the belief, for example whether the person has previously espoused the belief, or if it is closely connected in time with the ulterior motive. Eugene's procedural point is the strongest - sincerity is a factual question and does have to come after summary judgment etc., if it is disputed. However, sometimes the case will proceed in a way that sincerity comes up earlier (e.g. injunctive relief). And courts could hold mini-trials on sincerity if they believed it would dispatch the case quickly. I think Eugene's third point actually cuts the other way. Insincere plaintiffs generally make bad law for sincere plaintiffs. Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007) is an example I'm familiar with that demonstrates this point. In that case, the plaintiff came in to prison declaring himself to be Catholic, later changed his designation to Jewish and subsequently requested kosher food. When that was denied, he sued pro se and then appealed when he lost in district court. During the pendency of the appeal, he stopped participating in Jewish activities in prison, stopped responding to the court in the case, and then changed his religious designation within prison from Jewish to None. Given this narrative, I think the 5th Circuit could have decided that, or at least convened a hearing on whether, Mr. Baranowoski had been sincere in his claim to be Jewish. (Disclosure: we asked the Fifth Circuit to do that, but it did not grant our request.) The Fifth Circ! uit dropped a footnote in its opinion saying that neither side had raised the issue of sincerity. But of course Mr. Baranowski had no interest in raising the sincerity issue. And Texas would have no interest in raising the issue where it seemed clear that it would obtain favorable precedent from the Court. Thus someone who no longer considered himself Jewish (and may well never have) made it much more difficult for sincere, observant Jewish prisoners to obtain kosher dietary accommodation in prison. Had the Court looked into the sincerity question, it never would have reached the substantial burden question or the CGI/LRM analysis. Since the Constitution (and RLUIPA) are designed to protect only sincere plaintiffs, my feeling is that this is a bad result and should be avoided where possible. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 3:37 PM To: Law Religion issues for Law Academics Subject: Lack of sincerity I agree that, in principle, lack of sincerity rightly defeats a RFRA etc. claim. But in practice, my sense is that many judges are reluctant to find claimants to be insincere. Outside the prison context, I've seen very few cases in which the judge made such a finding. Even in Sherrod's case, the trial court said Mr. Sherrod's religious beliefs are deemed to be sincere, which sounds like a finding and not just an arguendo assumption (though deemed is somewhat ambiguous). Part of this, I expect, is judges' recognition of just how hard it is to come to a confident conclusion about a person's sincerity in such situations, where some of our tools for determining sincerity don't apply. Courts are rightly not supposed to look at whether the person's claimed beliefs are shared by others; they're rightly not supposed to look at whether the person's claimed beliefs are rational or logical; they're rightly not supposed to look at whether the person's claimed beliefs are consistent with the writings that the person is claiming to rely on. What else are they supposed to do? Sure, they can look at demeanor evidence, but that's notoriously unreliable; they can look at self-interest, but some sincere religious beliefs are also self-interested, and the self-interest is often hard to figure out in certain cases (especially if the person has spent a lot of time, effort, and money fighting something). Another part might
RE: Lack of sincerity
I'm wary of any suggestion that self-interest should be considered one of the important indicia for sincerity. It is all too common in free exercise claims: avoiding conscription, having a weekend day off, freedom from burdensome and costly land use regulations etc. I know that lots of free exercise claims do not involve self interest -- but enough legitimate claims do provide some secular benefit to the claimant that I think we have to be careful about reading too much into this factor. An alternative solution that works in some cases is to require the religious individual who receives an exemption to disgorge the secular benefit he receives from the accommodation -- something like requiring a CO to perform alternative service. Alan Brownstein -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach Sent: Friday, August 01, 2008 1:51 PM To: Law Religion issues for Law Academics Subject: RE: Lack of sincerity I agree that judges (and government agencies) are reluctant to make sincerity findings, even in the prisoner context where sincerity is an acknowledged problem. But I think it would be useful for these judges to apply a sincerity test where they can, since it is a predicate factual question to almost every religious liberty claim. And although I take on board Eugene's points below, I think there are some indicia that can properly be used to evaluate sincerity. Self-interest or ulterior motive is often a very good indicator in the prison context, cf. Church of the New Song, but also elsewhere. We here are contacted fairly frequently by folks who want to start a Church of Marijuana or start an otherwise banned Church of Universal Love and Music outdoor concert series. Courts should not be bashful about deciding, based on the emphasis on the ulterior motive and demeanor, that these potential plaintiffs are insincere. I think a court can also look at the history of the belief, for example whether the person has previously espoused the belief, or if it is closely connected in time with the ulterior motive. Eugene's procedural point is the strongest - sincerity is a factual question and does have to come after summary judgment etc., if it is disputed. However, sometimes the case will proceed in a way that sincerity comes up earlier (e.g. injunctive relief). And courts could hold mini-trials on sincerity if they believed it would dispatch the case quickly. I think Eugene's third point actually cuts the other way. Insincere plaintiffs generally make bad law for sincere plaintiffs. Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007) is an example I'm familiar with that demonstrates this point. In that case, the plaintiff came in to prison declaring himself to be Catholic, later changed his designation to Jewish and subsequently requested kosher food. When that was denied, he sued pro se and then appealed when he lost in district court. During the pendency of the appeal, he stopped participating in Jewish activities in prison, stopped responding to the court in the case, and then changed his religious designation within prison from Jewish to None. Given this narrative, I think the 5th Circuit could have decided that, or at least convened a hearing on whether, Mr. Baranowoski had been sincere in his claim to be Jewish. (Disclosure: we asked the Fifth Circuit to do that, but it did not grant our request.) The Fifth Circ! uit dropped a footnote in its opinion saying that neither side had raised the issue of sincerity. But of course Mr. Baranowski had no interest in raising the sincerity issue. And Texas would have no interest in raising the issue where it seemed clear that it would obtain favorable precedent from the Court. Thus someone who no longer considered himself Jewish (and may well never have) made it much more difficult for sincere, observant Jewish prisoners to obtain kosher dietary accommodation in prison. Had the Court looked into the sincerity question, it never would have reached the substantial burden question or the CGI/LRM analysis. Since the Constitution (and RLUIPA) are designed to protect only sincere plaintiffs, my feeling is that this is a bad result and should be avoided where possible. ___ 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.
RE: Lack of sincerity
I'm inclined to agree with Alan here -- many of us genuinely believe that those things that are good and pleasant for us are also good for our souls. There's nothing particularly inconsistent about someone's feeling a religious motivation to alter his mental state using marijuana; Rastafarians apparently sincerely believe in that, many Jews do as to Passover and (perhaps less strongly) Purim, Native Americans do as to peyote (though I understand peyote use is unpleasant in some ways as well as intriguing to many in other ways). It's true that the common secular desire to do the same thing may put one on guard about the possibility of insincerity. But it's hardly very telling evidence, and I would think many judges would be rightly reluctant to deny someone's exemption claim based on a weak inference from possibility of self-interest, coupled with difficult calls about demeanor. As to previous espousal of the belief, coupled with temporal connection with motive, that too seems dicey. Frazee stresses that long-standing belief is not required as a matter of law, and people do change their beliefs; every day there are probably thousands of people who have sincerely believed but new religious beliefs. Likewise, people sometimes only come to believe something (or come to believe it deeply) when some event prods them to really consider it for the first time. A conscientious objector, for instance, may not have thought much about whether his God lets him shoot at people until he is first faced with the prospect. (Many people often reflect on moral hypotheticals, and perhaps that's the better approach for one's moral or religious education; but many don't have that sort of hypothetical mindset.) A Jew who never saw the spiritual benefits of observing Shabbat might sincerely come to this realization after seeing the toll on his family life (an important component of Jewish religious life) and on his spiritual peace that his Saturday work is having. Finally, I agree with Eric and Doug that judges who are reluctant to find absence of sincerity may therefore hold for the state on substantial burden or compelling interest grounds. But I'm not sure that fully responds to the third point I raised, which is that the state has a distinct interest in having its denial of a religious exemption approved for all cases as a matter of law, rather than accepted in one particular case because a litigant is found to have been insincere. Among other things, it is often state administrators who have to first decide whether to grant an exemption. If a court says no need for such exemptions, the administrators can quickly dispose of the requests. But if there is no such decision, then administrators have to try to decide sincerity themselves in the first instance, and then expect appeals to judges or juries who will then determine sincerity anew. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan Sent: Friday, August 01, 2008 2:12 PM To: Law Religion issues for Law Academics Subject: RE: Lack of sincerity I'm wary of any suggestion that self-interest should be considered one of the important indicia for sincerity. It is all too common in free exercise claims: avoiding conscription, having a weekend day off, freedom from burdensome and costly land use regulations etc. I know that lots of free exercise claims do not involve self interest -- but enough legitimate claims do provide some secular benefit to the claimant that I think we have to be careful about reading too much into this factor. An alternative solution that works in some cases is to require the religious individual who receives an exemption to disgorge the secular benefit he receives from the accommodation -- something like requiring a CO to perform alternative service. Alan Brownstein -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach Sent: Friday, August 01, 2008 1:51 PM To: Law Religion issues for Law Academics Subject: RE: Lack of sincerity I agree that judges (and government agencies) are reluctant to make sincerity findings, even in the prisoner context where sincerity is an acknowledged problem. But I think it would be useful for these judges to apply a sincerity test where they can, since it is a predicate factual question to almost every religious liberty claim. And although I take on board Eugene's points below, I think there are some indicia that can properly be used to evaluate sincerity. Self-interest or ulterior motive is often a very good indicator in the prison context, cf. Church of the New Song, but also elsewhere. We here are contacted fairly frequently by folks who want to start a Church of Marijuana or start an otherwise banned Church of Universal Love and Music outdoor concert series. Courts should not be
RE: LOFTON / Re: Defamation of Religion
I agree with Robert Lipkin that there is a thing called religion as difficult as it may be to define. Certainly, there are things that we can confidently say is not it. What I have a problem with is the notion that government can be neutral among religions or between religion or irreligion. In particular, I am skeptical that a useful test for whether it has done so - or has managed to come as close as it ought to be expected to come - is captured by whether it has managed to avoid explicitly religious language. The state lost the Sklar and Montgomery cases because it started to talk theology (theology toward which I have a certain amount of sympathy) but I can't see why the insult to those who read their faith differently would be any less exclusionary or stigmatizing for the avoidance of such language. If I am a conservative evangelical who regards biblical injunctions against homosexuality as authoritive, I don't know why I would regard myself as not being made a disfavored member of the political community or not believing that the state has acted to disapprove my religious beliefs because it has avoided theological language. To the con! trary, if the state engages my sacred text (even, by my lights, erroneously), it has treated me with more respect than if it dismisses my views as bigotry. This is why, I think, the whole defamation against religion concept is an idea at war with itself. Those who promote the idea seem to want to say that, for example, the relatively mild criticisms of Islam by Mark Steyn (if you want a different villain than CAIR, try Bill Donahue) should bear legal sanction, But, if they are right, we need to know why secular messages that are far more inconsistent with or dismissive of integral religious presuppositions, e.g.,, assertions by the San Francisco Board of Examiners about Catholic teachings on homosexuality and the moral authority of the Church. Rick Esenberg Marquette University Law School From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] [EMAIL PROTECTED] Sent: Friday, August 01, 2008 9:45 AM To: religionlaw@lists.ucla.edu Cc: [EMAIL PROTECTED] Subject: Re: LOFTON / Re: Defamation of Religion Insisting there is no religion--it doesn't exist--but religion can nevertheless be used intelligibly (as a bracket term). suggests that one has an elaborate argument that no matter how much it might vary from ordinary intelligent discourse, he or she wants to impose on you. I think I'll pass on examining that argument, but go right ahead and articulate anyway. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware Ratio Juris, Contributor: http://ratiojuris.blogspot.com/ Essentially Contested America, Editor-In-Chief http://www.essentiallycontestedamerica.org/ In a message dated 8/1/2008 10:33:28 A.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: In point of fact, strictly speaking, there is no such thing that actually exists that is called religion. That's why I put it in quotes. Religion is an abstract category that no one actually practices any more than someone plays sports or eats food. Thus, I do not believe you can trivialize that which does not actually exist. As for creating conceptual and practical confusion, I believe this happens when one talks about unreal things as if they are real. In any event, if someone denies that all governments are religious in origin, and based on some kind of religion, let's test what I say. Name me a government that you say is not religious and I'll show you how it is. Thank you. John Lofton, Editor, TheAmericanView.com Recovering Republican Accursed is that peace of which revolt from God is the bond, and blessed are those contentions by which it is necessary to maintain the kingdom of Christ. -- John Calvin. -Original Message- From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Fri, 1 Aug 2008 6:52 am Subject: Re: LOFTON / Re: Defamation of Religion This certainly trivializes the concept of religion. A government that persecutes theists, defames religion in general, and so forth is religious? I suppose the argument is that such a government simply adopts the wrong religion. I suppose similarly each individual is religious no matter what that person's view is about the existence of God or the practice of religion. Taking this route, however, creates both conceptual and practical confusion, but one is, of course, free to take it. To what end? Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware Ratio Juris, Contributor: http://ratiojuris.blogspot.com/ Essentially Contested America, Editor-In-Chief http://www.essentiallycontestedamerica.org/ http://www.essentiallycontestedamerica.org/ In a message dated 7/31/2008 5:38:45 P.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: ALL government is religious. The only
