RE: Does substantial matter?
Im sorry to be late in returning to this thread. I appreciate Professor Masinters example, his posts and the others. It seems like Marty and Doug have helpfully given us a couple of ways of going forward. (1) Centrality could be a threshold requirement. (2) Centrality could be integrated into determinations of burden, compelling interest, least restrictive means, etc. And with much less experience, I share Dougs sense that this happens inevitably, without any need for centrality as a formal requirement. Judges are most sympathetic to practices of deep religious significance, and this is not a failing on their part. And when we move from courts to legislatures, legislatures openly and un-self-consciously give more protection to central practices. It seems to me that the whole for-profit issue arises because of problems with both of these approaches. We dont like centrality as a threshold requirement, because it is ugly for courts to administer and it means absolutely no protection for practices a court deems non-central, no matter how weak the governmental interest. And we dont like centrality integrated into other parts of the test, because it doesnt really fit. For-profit status makes sense as a kind of proxy for centrality. Im not persuaded theres something mysterious about for-profits that makes them categorically unable to practice religion. (And if you look at Tyndale House, for example, I think that point becomes kind of obvious.) But I am persuaded that most for-profits dont exercise religion, and that its generally not as important to their mission. One final wrinkle. Doug and Marty know this, but we have to keep in mind that this centrality argumentMarty below says that the government and its amici will no doubt argue, by contrast, that the court must also assess the degree of importance of the religious exercise to the plaintiffhowever sensible it is, runs into the text of RFRA. See 42 USC § 2000cc5(7)(A) (The term religious exercise includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.) Best, Chris ___ Christopher C. Lund Associate Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu (313) 577-4046 (phone) (313) 577-9016 (fax) Websitehttp://law.wayne.edu/profile/christopher.lund/ Papershttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, December 03, 2013 8:45 AM To: Law Religion issues for Law Academics Subject: Does substantial matter? Doug may well be right that for most lower courts (but not all -- see Michael Masinter's post), whether the term burden is modified by substantial will not matter, because such courts inevitably end up balancing the degree (or nature) of the burden on religious exercise -- indeed, the degree of religious significance -- against the strength of the government's interest in denying an exemption. From where we stand today, however, that's a somewhat odd argument to make, for two reasons. The first is that the terms of RFRA (and most state analogues) don't ask courts to do any such balancing: Instead, the court is asked in the first instance to assess whether there is a substantial burden -- on the face of it, what appears to be a binary, yes or no question -- and then (in theory) is not supposed to further assess the importance/substantiality/centrality/degree/etc. of that burden when moving on to the second step, which merely asks whether the government interest is compelling and can otherwise be advanced, even with a religious exemption. The second reason that we can't so easily dismiss substantial is, of course, that the Supreme Court has just granted cert. in a landmark case that will likely turn on precisely what the word substantial means. (At the very least, that question will get a thorough workout in the briefing and argument.) Many of those who are supporting Hobby Lobby will presumably argue that the adjective substantial refers only to the degree of coercion resulting from the government action (criminal sanctions being most coercive and thus creating the most substantial burden; denial of unemployment benefits also substantial (cf. Sherbert); denial of highly discretionary, rarely awarded benefits much less substantial, etc.). The government and its amici will no doubt argue, by contrast, that the court must also assess the degree of importance of the religious exercise to the plaintiff. My understanding from Doug's previous writings is that he agrees that some such assessment of religious significance (a continuous variable in Doug's terms -- not an on/off switch) is necessary, or at least inevitable (as his post here suggests). For example, he wrote this in a 2009 piece in Rutgers J. L Rel.: The text of
Re: Does substantial matter?
Chris: The question is not how central the religious exercise is to the plaintiff's system of religion -- an assessment that I would never encourage civic officials to assess and that the text of the statute in any event precludes -- but how *important *it is to the plaintiff, which can be viewed as a component of how substantial a burden the law places on the religious exercise. To take one obvious example: Conduct that is compelled by religious doctrine and conduct that is only modestly encouraged by religious tradition (throwing rice at the wedding) might both be part of religious exercise; but obviously a legal restriction on the former will impose a more substantial burden on that exercise than a restriction on the latter -- it'll bite more. These cases raise a different variation on that question . . . . On Wed, Dec 4, 2013 at 1:37 PM, Christopher Lund l...@wayne.edu wrote: I’m sorry to be late in returning to this thread. I appreciate Professor Masinter’s example, his posts and the others. It seems like Marty and Doug have helpfully given us a couple of ways of going forward. (1) Centrality could be a threshold requirement. (2) Centrality could be integrated into determinations of burden, compelling interest, least restrictive means, etc. And with much less experience, I share Doug’s sense that this happens inevitably, without any need for centrality as a formal requirement. Judges are most sympathetic to practices of deep religious significance, and this is not a failing on their part. And when we move from courts to legislatures, legislatures openly and un-self-consciously give more protection to central practices. It seems to me that the whole for-profit issue arises because of problems with both of these approaches. We don’t like centrality as a threshold requirement, because it is ugly for courts to administer and it means absolutely no protection for practices a court deems non-central, no matter how weak the governmental interest. And we don’t like centrality integrated into other parts of the test, because it doesn’t really fit. For-profit status makes sense as a kind of proxy for centrality. I’m not persuaded there’s something mysterious about for-profits that makes them categorically unable to practice religion. (And if you look at Tyndale House, for example, I think that point becomes kind of obvious.) But I am persuaded that most for-profits don’t exercise religion, and that it’s generally not as important to their mission. One final wrinkle. Doug and Marty know this, but we have to keep in mind that this centrality argument—Marty below says that “the government and its amici will no doubt argue, by contrast, that the court must also assess the degree of importance of the religious exercise to the plaintiff”—however sensible it is, runs into the text of RFRA. *See *42 USC § 2000cc–5(7)(A) (“The term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”) Best, Chris ___ Christopher C. Lund Associate Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu (313) 577-4046 (phone) (313) 577-9016 (fax) Website—http://law.wayne.edu/profile/christopher.lund/ Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Tuesday, December 03, 2013 8:45 AM *To:* Law Religion issues for Law Academics *Subject:* Does substantial matter? Doug may well be right that for most lower courts (but not all -- see Michael Masinter's post), whether the term burden is modified by substantial will not matter, because such courts inevitably end up balancing the degree (or nature) of the burden on religious exercise -- indeed, the degree of religious significance -- against the strength of the government's interest in denying an exemption. From where we stand today, however, that's a somewhat odd argument to make, for two reasons. The first is that the terms of RFRA (and most state analogues) don't ask courts to do any such balancing: Instead, the court is asked in the first instance to assess whether there is a substantial burden -- on the face of it, what appears to be a binary, yes or no question -- and then (in theory) is not supposed to further assess the importance/substantiality/centrality/degree/etc. of that burden when moving on to the second step, which merely asks whether the government interest is compelling and can otherwise be advanced, even with a religious exemption. The second reason that we can't so easily dismiss substantial is, of course, that the Supreme Court has just granted cert. in a landmark case that will likely turn on precisely what the word substantial means. (At the very
Free Exercise, compelled subsidies, and Abood
The religious employers in the contraception mandate cases are arguing that they are substantially burdened by being required to pay for insurance coverage that conflicts with their religious beliefs. The basic structure of this claim is: the government is forcing A to pay B for something that conflicts with A's conscience. This is a claim about compelled subsidies. My question is why this argument should be stronger in the RFRA/Free Exercise context than it is the free speech context. In Abood v. Detroit Board of Education, the Court held that non-union members could be compelled to pay for the equivalent of union dues, despite their conscientious objection. And here is what the Court said about the substantive content of that objection: An employee may very well have ideological objections to a wide variety of activities undertaken by the union in its role as exclusive representative. His moral or religious views about the desirability of abortion may not square with the union's policy in negotiating a medical benefits plan. 431 U.S. 209, 222 (1977) But those objections, based on the right to freedom of conscience, freedom of association, and freedom of thought (quoting Hansen, on which Abood relies), were not sufficient to defeat the state's requirement that non-union members contribute to the union's collective bargaining activities. If employees can be required to support a union's bargaining, including for medical plans that include abortion, why isn't the same true for employers with respect to paying for insurance that includes contraception? I know that some people think Abood is wrongly decided. But if that decision is wrong because there is no First Amendment interest implicated when one is compelled by the government to subsidize some activity to which one conscientiously objects, then why is there an interest under RFRA or the Free Exercise Clause with respect to the same form of compelled subsidies? To this point, much of the criticism of Hobby Lobby's compelled subsidy argument has focused on comparisons with Zelman. If third party choices function as a circuit breaker in the vouchers context, the same logic would seem to apply with respect to insurance coverage. Just as taxpayers can be required to subsidize a set of choices that includes religious schools (to which some object), employers can be required to subsidize a set of choices that includes contraception (to which some object). I think that argument has some force, especially given that the Court (in Winn and Hein) otherwise conceives of the establishment clause harm as an infringement on the taxpayer's freedom of conscience. But even if one sets aside the comparison with Zelman, there is still a puzzling asymmetry in how compelled subsidies are being conceived under RFRA and how they are treated under Abood. Micah ___ 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: The clergy-penitent privilege and burdens on third parties
Many reasons can be offered for the venerable privilege that originated as the priest-penitent privilege, including as Doug notes that the penitent having the confidence that confession is sacrosanct will be willing to share that which he or she withholds from all others and thereby be in a position to receive moral instruction and a direction for reconciliation from a priest that benefits all in society (much as does a lawyer for a client who confesses to past wrongdoing). But another reason for this kind of religious accommodation of something so central to a faith is to consider what kind of a society we would be without it. To tell someone that a basic sacrament or what is directly related to the sacramental nature of the church – whether it be use of an intoxicating substance in communion, confession to a priest to be reconciled to God, selection of ministers by apostolic succession – is forbidden or subject to the intrusive examination and regulation of the government should be most disturbing of all. Without an accommodation to Catholic churches on use of wine during prohibition or in a dry county, without protection of the confidentiality of the confessional through a privilege, without selection of priests by apostolic succession free of the kind of government rules and judicial monitoring that are imposed by anti-discrimination statutes, the Catholic faith simply could not be observed in this country – other than by resort to underground groups and dissident activities. (And, I recognize, other less mainstream faiths would be even more likely to suffer such governmental invasion, as witness the plight of Native American religions and others). To be sure, there are and have been governments that require clergy to serve an informants on the people – not just to what they have witnessed as wrongdoing but what they hear through confession by the people. And we have seen governments that demand a role in selecting or approving bishops and other ministers. The China of today and the Poland of the communist era come most readily to mind. That is not the kind of government that we Americans claim to have. Those of us of faith appreciate that on many things we may be forced on a regular basis to balance that which is a demand of or influence from our faith against our civic duties and the strictures of the secular order. I believe strongly that accommodation on many of these matters is appropriate, but appreciate that reasonable people will be of differing viewpoints in application in many instances. Governmental control over sacraments, though, is quite another thing, ratcheting up the violation of religious freedom to a much higher level. When worship itself is subjected to governmental monitoring and regulation, religious freedom becomes a hollow pledge. I am not given to hyperbole. I am more likely to be saddened than outraged when I see religious rights violated in this country. And, as noted, I frequently can appreciate, if not be persuaded by, the opposing viewpoint. I recoil from those, on both left and right, who exaggerate a dispute of the moment and contemplate an apocalyptic outcome justifying an extreme response. And I roll my eyes when some self-important celebrity or commentator threatens to leave the country if this or that policy is enacted or this or that politician is elected (and wish they would carry through on the threat afterward). But a government that overreaches so far as to deny me the sacrament of confession, for example, would be a society to which I could no longer give my loyalty as a citizen. Fortunately, despite some worrying remarks here and there, now and then, I remain confident that my fellow citizens will not bring us to that sad state of affairs. Greg Sisk Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 ___ 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: The clergy-penitent privilege and burdens on third parties
Much of free speech law involves protecting speech that burdens third parties; for example, the victims of hate speech suffer emotional distress as do the mourners at funerals tormented by the Westboro Church, and speech that does not quite violate Brandenburg can incite violence. Further, the cost to the public in protecting speech can be extraordinarily high. cities incurred tens of thousands of dollars in police and other costs while trying to maintain order during Operation Rescue protests. Criminal procedure rights can make it more difficult to apprehend and punish people who commit crimes. Property rights can make it more difficult to protect the environment. Rights have always been expensive politcal goods. It is true that the Establishment Clause imposes some constitutional constraints on the costs government may incur or impose on third parties in protecting religious liberty. Arguing that free exercise rights or statutory religious liberty rights should only be protected in situations in which doing so imposes virtually no costs on either the public or third parties, however, would treat religious liberty differently than almost all other rights and dramatically undermine their utility for people attempting to exercise such rights. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Christopher Lund [l...@wayne.edu] Sent: Wednesday, December 04, 2013 5:53 PM To: 'Law Religion issues for Law Academics' Subject: RE: The clergy-penitent privilege and burdens on third parties I think Marc’s point is solid and underappreciated. Following up on it, does anyone know of any literature that tries to think about “burdens on third parties” across constitutional rights? We accept such burdens as a matter of course with defamation law, as Marc notes. Yet we also accept them in other contexts. Guns would be one obvious example. But also think of, for example, busing during the Civil Rights Era. White suburban families had to accept busing of their kids to distant and sometimes difficult schools, because desegregation was that important. Or think about abortion: I think the Court was right to hold spousal consent and notification laws unconstitutional, but there are real issues of third-party harms there too. Best, Chris ___ 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: The clergy-penitent privilege and burdens on third parties
Greg’s argument is obviously quite eloquent. But I think it is telling that it is really predicated on Catholic theology, including the “sacramental” nature of confession and the joint duty of the penitent/sinner to confess and of the priest to keep the confession confidential. And, of course, there is rarely any difficulty in identifying who counts as a “priest.” There is an almost 2000-year-old institution one of whose main functions is ordaining a special group of people who can engage in certain sacramental roles. I’ve already indicated that I’m inclined to be sympathetic to such claims because of the theology they’re connected with (whether or not, of course, I subscribe to it myself). But I’m not clear why this just justify the broader privilege. It’s telling as well, isn’t it, that we refer to it a privilege attaching to the “clergy” rather than simply to priests, and it’s not clear what it means to call non-Catholics “penitents.” If there’s a) no religious duty to confess; b) no religious duty to preserve confidences; and c) a belief that breach of either duty will generate some kind of divine sanction (including in the afterlife), then I continue not to see the difference between, say, a rabbi and a truly empathetic hairdresser. Indeed, as suggested earlier, I find it difficult to distinguish as well between a legally-recognized spouse and, say, a “work-spouse,” let alone, of course, in those states that don’t recognize same-sex marriage, a member of a “civil union.” (I assume, for example, that Texas does not recognize a “spousal privilege” of a legally-married same-sex couple from Massachusetts who have been transferred to Texas to serve military duty. Am I wrong?) I share Greg’s fear of the totalitarian state that calls on us to inform on one another, but that is precisely the state we live in today, save for those very few people lucky enough to be able to claim a strong testimonial privilege. But, as in all “equal protection” cases, there are millions of others who are similarly situated. Is the solution to give millions more people such privileges or to pare down the existing privileges to those that can survive intellectual challenge? sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sisk, Gregory C. Sent: Wednesday, December 04, 2013 10:27 PM To: 'Law Religion issues for Law Academics' Subject: RE: The clergy-penitent privilege and burdens on third parties Many reasons can be offered for the venerable privilege that originated as the priest-penitent privilege, including as Doug notes that the penitent having the confidence that confession is sacrosanct will be willing to share that which he or she withholds from all others and thereby be in a position to receive moral instruction and a direction for reconciliation from a priest that benefits all in society (much as does a lawyer for a client who confesses to past wrongdoing). But another reason for this kind of religious accommodation of something so central to a faith is to consider what kind of a society we would be without it. To tell someone that a basic sacrament or what is directly related to the sacramental nature of the church – whether it be use of an intoxicating substance in communion, confession to a priest to be reconciled to God, selection of ministers by apostolic succession – is forbidden or subject to the intrusive examination and regulation of the government should be most disturbing of all. Without an accommodation to Catholic churches on use of wine during prohibition or in a dry county, without protection of the confidentiality of the confessional through a privilege, without selection of priests by apostolic succession free of the kind of government rules and judicial monitoring that are imposed by anti-discrimination statutes, the Catholic faith simply could not be observed in this country – other than by resort to underground groups and dissident activities. (And, I recognize, other less mainstream faiths would be even more likely to suffer such governmental invasion, as witness the plight of Native American religions and others). To be sure, there are and have been governments that require clergy to serve an informants on the people – not just to what they have witnessed as wrongdoing but what they hear through confession by the people. And we have seen governments that demand a role in selecting or approving bishops and other ministers. The China of today and the Poland of the communist era come most readily to mind. That is not the kind of government that we Americans claim to have. Those of us of faith appreciate that on many things we may be forced on a regular basis to balance that which is a demand of or influence from our faith against our civic duties and the strictures of the secular order. I believe strongly that accommodation on many of these matters is
RE: The clergy-penitent privilege and burdens on third parties
Free speech doctrine, for better or worse, presumably protects (almost) everyone. What is distinctive about the clergy-penitent privilege is that it protects only a particular subset of people, i.e., those who claim some religious identity, as against secularists who have the same desire to unburden themselves to sympathetic listeners but can't assume that it is protected in the same way. Aren't we back to the conundra involving conscientious objection and the Seeger and Welch cases. There the Court could adopt Paul Tillich and say that secularists, too, have ultimate concerns equivalent to religious commitments. Can one imagine a similar move with regard to clergy privileges? I support such cases as Rosenberger (assuming, at least, one version of the facts in that case, which may or may not be entirely correct) and Widmar v. Vincent on equality grounds, i.e., those who are religious should not be selected out for worse treatment than those who are secular. If I can use a facility for meetings of my philosophy club, then I think that others should be free to use the facility for meetings of the Good News Club. But it is telling that we're talking about a privilege that is denied to each and every secular person (unless they can afford a shrink, though even there the privilege is significantly more constrained than is the case with a priest), and equality arguments go by the boards. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Wednesday, December 04, 2013 11:35 PM To: Law Religion issues for Law Academics Subject: RE: The clergy-penitent privilege and burdens on third parties Much of free speech law involves protecting speech that burdens third parties; for example, the victims of hate speech suffer emotional distress as do the mourners at funerals tormented by the Westboro Church, and speech that does not quite violate Brandenburg can incite violence. Further, the cost to the public in protecting speech can be extraordinarily high. cities incurred tens of thousands of dollars in police and other costs while trying to maintain order during Operation Rescue protests. Criminal procedure rights can make it more difficult to apprehend and punish people who commit crimes. Property rights can make it more difficult to protect the environment. Rights have always been expensive politcal goods. It is true that the Establishment Clause imposes some constitutional constraints on the costs government may incur or impose on third parties in protecting religious liberty. Arguing that free exercise rights or statutory religious liberty rights should only be protected in situations in which doing so imposes virtually no costs on either the public or third parties, however, would treat religious liberty differently than almost all other rights and dramatically undermine their utility for people attempting to exercise such rights. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Christopher Lund [l...@wayne.edu] Sent: Wednesday, December 04, 2013 5:53 PM To: 'Law Religion issues for Law Academics' Subject: RE: The clergy-penitent privilege and burdens on third parties I think Marc's point is solid and underappreciated. Following up on it, does anyone know of any literature that tries to think about burdens on third parties across constitutional rights? We accept such burdens as a matter of course with defamation law, as Marc notes. Yet we also accept them in other contexts. Guns would be one obvious example. But also think of, for example, busing during the Civil Rights Era. White suburban families had to accept busing of their kids to distant and sometimes difficult schools, because desegregation was that important. Or think about abortion: I think the Court was right to hold spousal consent and notification laws unconstitutional, but there are real issues of third-party harms there too. Best, Chris ___ 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.
Comparing religious exemptions and free speech
I agree with Alan, Marc, and Chris at some level of generality. But it seems to me that religious exemption claims are rightly treated differently than other claims, such as free speech claims. Consider, for instance, the emotional distress tort. Larry Flynt says nasty things about Jerry Falwell and thus intentionally inflicts emotional distress on him -- constitutionally protected. Bill Believer decides to protest outside Falwell's home at night with loudspeakers and thus intentionally inflict emotional distress on him, because he feels a religious obligation to expostulate with Falwell this way -- I take it this is not protected by RFRA or under a Sherbert/Yoder state constitutional regimes. Or consider the interference with business relations tort. The NAACP organizes a boycott of Claiborne Hardware, backed by the threat of social ostracism (let's bracket even the possible threats) -- constitutionally protected. Ron Religious decides to block the entrance to an abortion clinic (or a liquor store or a gambling establishment), because he feels a religious obligation to do so -- I take it this is not protected by RFRA or under a Sherbert/Yoder state constitutional regime, even if the only real harm to the establishment is interference with business relations. It seems to me that inflicting harm through the communicative impact of speech is rightly more privileged under the law than inflict harm through the noncommunicative impact of religious conduct. Part of the reason may be that speech is seen as broadly socially valuable as well as valuable to the individual speaker. Part of the reason may be that communication is special for various reasons. But in any event, I think we treat these scenarios differently, and rightly so. If I'm right on that, then I don't think we can just say that religious exemption claims should be treated comparably to free speech claims. Conversely, if they should be treated that way, then we'd have a right to inflict emotional distress or loss of business on others through noncommunicative means, so long as they are religious motivated; can that be right? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Wednesday, December 04, 2013 8:35 PM To: Law Religion issues for Law Academics Subject: RE: The clergy-penitent privilege and burdens on third parties Much of free speech law involves protecting speech that burdens third parties; for example, the victims of hate speech suffer emotional distress as do the mourners at funerals tormented by the Westboro Church, and speech that does not quite violate Brandenburg can incite violence. Further, the cost to the public in protecting speech can be extraordinarily high. cities incurred tens of thousands of dollars in police and other costs while trying to maintain order during Operation Rescue protests. Criminal procedure rights can make it more difficult to apprehend and punish people who commit crimes. Property rights can make it more difficult to protect the environment. Rights have always been expensive politcal goods. It is true that the Establishment Clause imposes some constitutional constraints on the costs government may incur or impose on third parties in protecting religious liberty. Arguing that free exercise rights or statutory religious liberty rights should only be protected in situations in which doing so imposes virtually no costs on either the public or third parties, however, would treat religious liberty differently than almost all other rights and dramatically undermine their utility for people attempting to exercise such rights. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Christopher Lund [l...@wayne.edu] Sent: Wednesday, December 04, 2013 5:53 PM To: 'Law Religion issues for Law Academics' Subject: RE: The clergy-penitent privilege and burdens on third parties I think Marc's point is solid and underappreciated. Following up on it, does anyone know of any literature that tries to think about burdens on third parties across constitutional rights? We accept such burdens as a matter of course with defamation law, as Marc notes. Yet we also accept them in other contexts. Guns would be one obvious example. But also think of, for example, busing during the Civil Rights Era. White suburban families had to accept busing of their kids to distant and sometimes difficult schools, because desegregation was that important. Or think about abortion: I think the Court was right to hold spousal consent and notification laws unconstitutional, but there are real issues of third-party harms there too. Best, Chris ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or
Re: Free Exercise, compelled subsidies, and Abood
I agree that, in Abood, the Court held that the compelled subsidy burdened First Amendment interests. I didn't mean to suggest otherwise (and indeed I've made the same point in an article discussing Abood), although re-reading my post below, I can see that I was not clear about this. My question was about why the conscientious objection in Abood is dismissed (in part), whereas in Hobby Lobby it is taken to have stronger force, even though both cases seem to involve similar forms of compelled subsidies. I also agree that the Court's holding in Abood is based on the government's interest in preserving labor peace. But I'm not convinced that Abood is best read as having applied strict scrutiny. (Even at the time, concurring in the judgment in Abood, Justice Powell complained that the Court had not required the government to show that its interest was paramount, one of vital importance, or that its means [were] closely drawn to avoid unnecessary abridgment…) Most of the later compelled support cases (e.g., Keller, Glickman) also don't seem to apply such stringent forms of review. But even if you think Abood and its progeny require strict scrutiny, the comparison still seems bad for Hobby Lobby. The Abood Court directly addressed the objection that a non-union member might be conscientiously opposed to paying for union agreements that included medical plans covering abortion. One response here might be that labor peace is a more important interest than those asserted in Hobby Lobby. But in later compelled support cases, the interests involved seem rather less significant -- promoting the stone fruits industry, or subsidizing student extra-curricular activities? One could make a similar point about how those cases treat the question of least restrictive means. Again, I realize that my question is one of analogy, but the Abood line seems to set the bar rather low. Micah On Dec 4, 2013, at 5:06 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Maybe I’m missing something, but the Court (1) found that the requirement of payment to the union did substantially burden First Amendment interests, but (2) this burden was justified in that case, and only as to collective bargaining expenses, by the “important government interest” in preserving labor peace. (Since then, that test has been seen as an application of strict scrutiny, but the important vs. compelling interest lingo wasn’t as firmly established back then.) So Abood cuts in favor of Hobby Lobby on the substantial burden side, I would think. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman Sent: Wednesday, December 04, 2013 12:43 PM To: Law Religion issues for Law Academics Subject: Free Exercise, compelled subsidies, and Abood The religious employers in the contraception mandate cases are arguing that they are substantially burdened by being required to pay for insurance coverage that conflicts with their religious beliefs. The basic structure of this claim is: the government is forcing A to pay B for something that conflicts with A's conscience. This is a claim about compelled subsidies. My question is why this argument should be stronger in the RFRA/Free Exercise context than it is the free speech context. In Abood v. Detroit Board of Education, the Court held that non-union members could be compelled to pay for the equivalent of union dues, despite their conscientious objection. And here is what the Court said about the substantive content of that objection: An employee may very well have ideological objections to a wide variety of activities undertaken by the union in its role as exclusive representative. His moral or religious views about the desirability of abortion may not square with the union's policy in negotiating a medical benefits plan. 431 U.S. 209, 222 (1977) But those objections, based on the right to freedom of conscience, freedom of association, and freedom of thought (quoting Hansen, on which Abood relies), were not sufficient to defeat the state's requirement that non-union members contribute to the union's collective bargaining activities. If employees can be required to support a union's bargaining, including for medical plans that include abortion, why isn't the same true for employers with respect to paying for insurance that includes contraception? I know that some people think Abood is wrongly decided. But if that decision is wrong because there is no First Amendment interest implicated when one is compelled by the government to subsidize some activity to which one conscientiously objects, then why is there an interest under RFRA or the Free Exercise Clause with respect to the same form of compelled subsidies? To this point, much of the criticism of Hobby Lobby's compelled subsidy argument has
RE: Free Exercise, compelled subsidies, and Abood
Well, the most recent case, Knox, does label Abood as applying strict scrutiny. But even if Abood applied lower scrutiny (which I agree is a possible interpretation), then wouldn't that cut in favor of Hobby Lobby? After all, that a requirement passed lower scrutiny under the Free Speech Clause in Abood doesn't tell us much about whether the requirement should pass strict scrutiny under RFRA. Nor is Southworth or the compelled commercial advertising cases particularly relevant; those cases deliberately did not invoke strict scrutiny; indeed, both took pains to distinguish Abood. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman Sent: Wednesday, December 04, 2013 10:15 PM To: Law Religion issues for Law Academics Subject: Re: Free Exercise, compelled subsidies, and Abood I agree that, in Abood, the Court held that the compelled subsidy burdened First Amendment interests. I didn't mean to suggest otherwise (and indeed I've made the same point in an article discussing Abood), although re-reading my post below, I can see that I was not clear about this. My question was about why the conscientious objection in Abood is dismissed (in part), whereas in Hobby Lobby it is taken to have stronger force, even though both cases seem to involve similar forms of compelled subsidies. I also agree that the Court's holding in Abood is based on the government's interest in preserving labor peace. But I'm not convinced that Abood is best read as having applied strict scrutiny. (Even at the time, concurring in the judgment in Abood, Justice Powell complained that the Court had not required the government to show that its interest was paramount, one of vital importance, or that its means [were] closely drawn to avoid unnecessary abridgment...) Most of the later compelled support cases (e.g., Keller, Glickman) also don't seem to apply such stringent forms of review. But even if you think Abood and its progeny require strict scrutiny, the comparison still seems bad for Hobby Lobby. The Abood Court directly addressed the objection that a non-union member might be conscientiously opposed to paying for union agreements that included medical plans covering abortion. One response here might be that labor peace is a more important interest than those asserted in Hobby Lobby. But in later compelled support cases, the interests involved seem rather less significant -- promoting the stone fruits industry, or subsidizing student extra-curricular activities? One could make a similar point about how those cases treat the question of least restrictive means. Again, I realize that my question is one of analogy, but the Abood line seems to set the bar rather low. Micah On Dec 4, 2013, at 5:06 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Maybe I'm missing something, but the Court (1) found that the requirement of payment to the union did substantially burden First Amendment interests, but (2) this burden was justified in that case, and only as to collective bargaining expenses, by the important government interest in preserving labor peace. (Since then, that test has been seen as an application of strict scrutiny, but the important vs. compelling interest lingo wasn't as firmly established back then.) So Abood cuts in favor of Hobby Lobby on the substantial burden side, I would think. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman Sent: Wednesday, December 04, 2013 12:43 PM To: Law Religion issues for Law Academics Subject: Free Exercise, compelled subsidies, and Abood The religious employers in the contraception mandate cases are arguing that they are substantially burdened by being required to pay for insurance coverage that conflicts with their religious beliefs. The basic structure of this claim is: the government is forcing A to pay B for something that conflicts with A's conscience. This is a claim about compelled subsidies. My question is why this argument should be stronger in the RFRA/Free Exercise context than it is the free speech context. In Abood v. Detroit Board of Education, the Court held that non-union members could be compelled to pay for the equivalent of union dues, despite their conscientious objection. And here is what the Court said about the substantive content of that objection: An employee may very well have ideological objections to a wide variety of activities undertaken by the union in its role as exclusive representative. His moral or religious views about the desirability of abortion may not square with the union's policy in negotiating a medical benefits plan. 431 U.S. 209, 222 (1977) But those objections, based on the right to
RE: Comparing religious exemptions and free speech
Putting aside Eugene's first example involving religiously motivated speech because religious exercise overlaps speech and it can get very complicated figuring out how overlapping rights frameworks fit together, I agree with Eugene in some respects. I do not equate religious liberty and freedom of speech or religious liberty and other fundamental rights so that the doctrine for one right has to directly parallel the doctrine for a different right. My point was the more general one with which Eugene apparently agrees. Recognizing and protecting interests like speech and religion as rights acknowledges that society is willing to incur some costs to protect those interests. What those costs are and how they compare for different rights aren't easy questions to answer. I view religious liberty to be primarily a dignitary right, like the right to marry and the right to be or not be a parent. There is a dignitary dimension to speech as well, but speech also serves important instrumental functions. Still, I find it difficult to compare the protection provided to speech and the protection provided to essentially dignitary rights. I would not like having my right to speak restricted. But I can certainly tolerate many restrictions on my speech more easily than I can accept government interference with my marriage and family or my ability to practice my religion. Suppose a city is worried about noise and congestion on certain downtown streets during the week. Accordingly, it tells a group that wants to host an expressive event at a local arena it is renting that it will only give the group a permit for the event if the event is moved to the weekend. Suppose the city also tells the only synagogue in the city which is located in the downtown area that for the same reason -- to avoid noise and congestion during the week -- it should move Yom Kippur services to the weekend instead of the mid-week date when they are scheduled. Would it be improper to protect the right to worship in the synagogue more rigorously than the right to hold the expressive event in the arena -- even though both activities cause the same harm to the public in increased noise and congestion? While the government's goal may be the same in both cases, time, place, and manner regulations may be much more burdensome to religious exercise than speech. Even content discriminatory regulations may be far less burdensome to the speaker than restrictions on worship or religious practice to the devout individual. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Wednesday, December 04, 2013 9:08 PM To: Law Religion issues for Law Academics Subject: Comparing religious exemptions and free speech I agree with Alan, Marc, and Chris at some level of generality. But it seems to me that religious exemption claims are rightly treated differently than other claims, such as free speech claims. Consider, for instance, the emotional distress tort. Larry Flynt says nasty things about Jerry Falwell and thus intentionally inflicts emotional distress on him -- constitutionally protected. Bill Believer decides to protest outside Falwell’s home at night with loudspeakers and thus intentionally inflict emotional distress on him, because he feels a religious obligation to expostulate with Falwell this way -- I take it this is not protected by RFRA or under a Sherbert/Yoder state constitutional regimes. Or consider the interference with business relations tort. The NAACP organizes a boycott of Claiborne Hardware, backed by the threat of social ostracism (let’s bracket even the possible threats) -- constitutionally protected. Ron Religious decides to block the entrance to an abortion clinic (or a liquor store or a gambling establishment), because he feels a religious obligation to do so -- I take it this is not protected by RFRA or under a Sherbert/Yoder state constitutional regime, even if the only real harm to the establishment is interference with business relations. It seems to me that inflicting harm through the communicative impact of speech is rightly more privileged under the law than inflict harm through the noncommunicative impact of religious conduct. Part of the reason may be that speech is seen as broadly socially valuable as well as valuable to the individual speaker. Part of the reason may be that communication is special for various reasons. But in any event, I think we treat these scenarios differently, and rightly so. If I’m right on that, then I don’t think we can just say that religious exemption claims should be treated comparably to free speech claims. Conversely, if they should be treated that way, then we’d have a right to inflict emotional distress or loss of business on others through noncommunicative means, so long as they are religious motivated; can
Re: Free Exercise, compelled subsidies, and Abood
My point is that if you read Abood as applying a lower standard of review, then why apply a higher one for compelled subsidies in Hobby Lobby? What justifies the asymmetry, especially given that Abood identifies the non-union member's interest as one of freedom of conscience? And if you read Abood as applying strict scrutiny (following United Foods and Knox), then it seems as easily satisfied in Hobby Lobby as it was in cases like Keller and Glickman. And I don't think those cases can be dismissed as irrelevant, given that they hold that the test in Abood was satisfied by the regulations in question, even if Abood could be distinguished on other grounds (which may have been true in Glickman, though not in Keller). On Dec 5, 2013, at 1:52 AM, Volokh, Eugene vol...@law.ucla.edu wrote: Well, the most recent case, Knox, does label Abood as applying strict scrutiny. But even if Abood applied lower scrutiny (which I agree is a possible interpretation), then wouldn’t that cut in favor of Hobby Lobby? After all, that a requirement passed lower scrutiny under the Free Speech Clause in Abood doesn’t tell us much about whether the requirement should pass strict scrutiny under RFRA. Nor is Southworth or the compelled commercial advertising cases particularly relevant; those cases deliberately did not invoke strict scrutiny; indeed, both took pains to distinguish Abood. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman Sent: Wednesday, December 04, 2013 10:15 PM To: Law Religion issues for Law Academics Subject: Re: Free Exercise, compelled subsidies, and Abood I agree that, in Abood, the Court held that the compelled subsidy burdened First Amendment interests. I didn't mean to suggest otherwise (and indeed I've made the same point in an article discussing Abood), although re-reading my post below, I can see that I was not clear about this. My question was about why the conscientious objection in Abood is dismissed (in part), whereas in Hobby Lobby it is taken to have stronger force, even though both cases seem to involve similar forms of compelled subsidies. I also agree that the Court's holding in Abood is based on the government's interest in preserving labor peace. But I'm not convinced thatAbood is best read as having applied strict scrutiny. (Even at the time, concurring in the judgment in Abood, Justice Powell complained that the Court had not required the government to show that its interest was paramount, one of vital importance, or that its means [were] closely drawn to avoid unnecessary abridgment…) Most of the later compelled support cases (e.g., Keller, Glickman) also don't seem to apply such stringent forms of review. But even if you think Abood and its progeny require strict scrutiny, the comparison still seems bad for Hobby Lobby. The Abood Court directly addressed the objection that a non-union member might be conscientiously opposed to paying for union agreements that included medical plans covering abortion. One response here might be that labor peace is a more important interest than those asserted in Hobby Lobby. But in later compelled support cases, the interests involved seem rather less significant -- promoting the stone fruits industry, or subsidizing student extra-curricular activities? One could make a similar point about how those cases treat the question of least restrictive means. Again, I realize that my question is one of analogy, but the Abood line seems to set the bar rather low. Micah On Dec 4, 2013, at 5:06 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Maybe I’m missing something, but the Court (1) found that the requirement of payment to the union did substantially burden First Amendment interests, but (2) this burden was justified in that case, and only as to collective bargaining expenses, by the “important government interest” in preserving labor peace. (Since then, that test has been seen as an application of strict scrutiny, but the important vs. compelling interest lingo wasn’t as firmly established back then.) So Abood cuts in favor of Hobby Lobby on the substantial burden side, I would think. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman Sent: Wednesday, December 04, 2013 12:43 PM To: Law Religion issues for Law Academics Subject: Free Exercise, compelled subsidies, and Abood The religious employers in the contraception mandate cases are arguing that they are substantially burdened by being required to pay for insurance coverage that conflicts with their religious beliefs. The basic structure of this claim is: the government is forcing A to pay B for something that conflicts with A's
