RE: Two kinds of religious exemption arguments
I cannot help but wonder what Alan's view is of the recent Utah polygamy case. It does seem to me that the arguments he so eloquently makes below should apply (easiest case) to adult old-Mormons who continue to believe that their religion encourages (compels?) multiple marriages. In this instance, at least, I suspect there's be relatively little incentive to engage in strategic misrepresentation, though the obvious problem is the creation of a new sect, perhaps in Colorado, that preaches the virtues both of smoking marijuana and multiple marriage (polyandrous and well as polygamous). I personally have no problem with this, though, to put it mildly, I would be surprised if Windsor were interpreted to require recognition of such marriages even if, by stipulation, Colorado did. sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, December 19, 2013 12:19 AM To: Law Religion issues for Law Academics Subject: RE: Two kinds of religious exemption arguments Sorry. My mistake. My post was focusing on statutory accommodations because RFRA has been the focus of most of the recent discussion on the list. Eugene is quite right that the case for an analogy to family relationships is stronger for statutory accommodations. But there is some basis for analogizing the constitutional protection and accommodation of religious liberty to the protection and accommodation of family relationships. I don't want to overstate the point here, but the Court does discuss freedom of intimate association in Roberts and suggests that such associations might be exempt from anti-discrimination laws. Such cases rarely come up because statutes do not attempt to subject intimate associations such as families to anti-discrimination laws. But I assume that a family could assert a family/intimate association exemption should it be subject to anti-discrimination laws in various social settings. Moore v. City of East Cleveland also requires in a sense a family exemption from zoning laws. One might also argue that the right to marry protects the ability to form a family and marry the person one loves, even though doing so imposes costs on third parties. Cases like Zablocki are not necessarily cost free. A divorced father owing child support who starts a new family may have less resources available to support his earlier family. Finally, some, but not all, of the debate about same-sex marriages could be characterized as a debate about providing constitutional protection to gay men (or lesbians) who love each other and want the state to recognize and protect their mutual commitments and the responsibilities they accept that arise from those commitments. Many argue that constitutional law requires states to accommodate the love, commitment and loyalty of same-sex partners who seek to be married notwithstanding state law that only permits marriages between one man and one woman. I must admit that I have never understood the argument that such marriages impose costs on third parties or the general public. But clearly, many people believe that such costs exist. Would proof of some such costs, however modest they might be, justify denying same-sex couples the right to marry? Or would we insist that it should require a showing of very, very, high costs before we would allow a state to refuse to acknowledge! and accommodate the right of two adults who love each other and are committed to caring for each other to marry. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Wednesday, December 18, 2013 4:17 PM To: Law Religion issues for Law Academics Subject: RE: Two kinds of religious exemption arguments I appreciate Alan's point, but I wonder how far it goes. First, I might not have been clear enough on this in my post, but I was speaking of what should be a matter of constitutional entitlement, or entitlement under a generally applicable exemption scheme. And we generally do not provide any constitutional exemption for love- and loyalty-based interests. Loyalty to a friend, a child, a parent, or a spouse won't give you a constitutionally mandated exemption from, say, a duty to testify. (The spousal testimonial privileges, I think, is a matter of common law and statute, not a constitutional mandate.) If you quit a job because of a desire to spend more time with your children, your spouse, or your aging parents, you will not get a constitutional entitlement to unemployment compensation. Second, even if we focus on exemptions created as a matter of legislative discretion (or common law), there are likewise very few in which familial love and loyalty exempt one from what would otherwise be a generally
RE: Two kinds of religious exemption arguments
There are arguments that the costs of accommodating polygamy are unacceptably high. I leave it to others to evaluate those arguments. But, from at least one perspective, concerns about polygamy do support an analogy between recognizing and accommodating the love and loyalty of family members (including same-sex marital partners) and recognizing and accommodating the needs of devout individuals who are loyal to their religious commitments. I wrote some time ago that, The fear of having to recognize and protect polygamy has been the pit at the bottom of the slippery slope arguments that have been employed to deny the rights of both gays and lesbians and religious minorities. Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Thursday, December 19, 2013 7:47 AM To: Law Religion issues for Law Academics Subject: RE: Two kinds of religious exemption arguments I cannot help but wonder what Alan's view is of the recent Utah polygamy case. It does seem to me that the arguments he so eloquently makes below should apply (easiest case) to adult old-Mormons who continue to believe that their religion encourages (compels?) multiple marriages. In this instance, at least, I suspect there's be relatively little incentive to engage in strategic misrepresentation, though the obvious problem is the creation of a new sect, perhaps in Colorado, that preaches the virtues both of smoking marijuana and multiple marriage (polyandrous and well as polygamous). I personally have no problem with this, though, to put it mildly, I would be surprised if Windsor were interpreted to require recognition of such marriages even if, by stipulation, Colorado did. sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, December 19, 2013 12:19 AM To: Law Religion issues for Law Academics Subject: RE: Two kinds of religious exemption arguments Sorry. My mistake. My post was focusing on statutory accommodations because RFRA has been the focus of most of the recent discussion on the list. Eugene is quite right that the case for an analogy to family relationships is stronger for statutory accommodations. But there is some basis for analogizing the constitutional protection and accommodation of religious liberty to the protection and accommodation of family relationships. I don't want to overstate the point here, but the Court does discuss freedom of intimate association in Roberts and suggests that such associations might be exempt from anti-discrimination laws. Such cases rarely come up because statutes do not attempt to subject intimate associations such as families to anti-discrimination laws. But I assume that a family could assert a family/intimate association exemption should it be subject to anti-discrimination laws in various social settings. Moore v. City of East Cleveland also requires in a sense a family exemption from zoning laws. One might also argue that the right to marry protects the ability to form a family and marry the person one loves, even though doing so imposes costs on third parties. Cases like Zablocki are not necessarily cost free. A divorced father owing child support who starts a new family may have less resources available to support his earlier family. Finally, some, but not all, of the debate about same-sex marriages could be characterized as a debate about providing constitutional protection to gay men (or lesbians) who love each other and want the state to recognize and protect their mutual commitments and the responsibilities they accept that arise from those commitments. Many argue that constitutional law requires states to accommodate the love, commitment and loyalty of same-sex partners who seek to be married notwithstanding state law that only permits marriages between one man and one woman. I must admit that I have never understood the argument that such marriages impose costs on third parties or the general public. But clearly, many people believe that such costs exist. Would proof of some such costs, however modest they might be, justify denying same-sex couples the right to marry? Or would we insist that it should require a showing of very, very, high costs before we would allow a state to refuse to acknowledge! and accommodate the right of two adults who love each other and are committed to caring for each other to marry. Alan ___ 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
RE: Two kinds of religious exemption arguments
I appreciate Alan's point about Moore, which is indeed an exemption from a generally applicable law for family relationships. But note how rare such an exemption is, and how minimal the costs are that it imposes on others. Neither neighbors nor taxpayers, I suspect, suffer appreciably from grandkids' being able to live with their grandmother. Whatever social benefits zoning law provides, such a narrow exemption to the law does not materially undermine them. Moore is thus an example of the low-cost accommodation, and to the extent that religious exemption claims can be analogized to it, Moore would only offer a precedent for similarly low-cost accommodations. The use of freedom of intimate association to bar the application of certain antidiscrimination laws is also interesting, but it's not really about the love and loyalty pointed to in Alan's earlier post, I think. The clearest example of such an application of intimate association, for instance, comes in the Ninth Circuit's recent Roommates.com decision, in which the Circuit concluded that people likely have a constitutional right to discriminate in choice of roommates. Whatever is going on with that right, I don't think the point is protection of love and loyalty. (Note also that the exemption from antidiscrimination law would again be cognate in the Religion Clauses context to a limited right to exemptions -- see Hosanna-Tabor -- and not a general Sherbert/Yoder exemption regime.) The right to marry is complicated by the fact that so many of the debates about the right are about equality rules, not substantive rights claims. (Indeed, most cases recognizing same-sex marriages have focused on equal treatment claims, not on a substantive right to marry.) It is further complicated by the fact that, with the repeal of fornication bans, the right to marry doesn't function as a negative liberty from government interference, and more as a positive claim to government recognition. But in any event, the right to marry (as a substantive right rather than an equality right) offers a very narrow range of protection from government conduct, and again in a context that is fairly low-cost for others. (A divorced father owing child support, after all, may well start a new family even without getting married, and very many fathers do; it's not the right to marry that's creating that much of a cost.) I don't see that a right to marry offers much analogy to an asse! rted constitutional right to inflict significant costs on others (or on society) simply because one believes that God wants one to do something that the law forbids. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Wednesday, December 18, 2013 9:19 PM To: Law Religion issues for Law Academics Subject: RE: Two kinds of religious exemption arguments Sorry. My mistake. My post was focusing on statutory accommodations because RFRA has been the focus of most of the recent discussion on the list. Eugene is quite right that the case for an analogy to family relationships is stronger for statutory accommodations. But there is some basis for analogizing the constitutional protection and accommodation of religious liberty to the protection and accommodation of family relationships. I don't want to overstate the point here, but the Court does discuss freedom of intimate association in Roberts and suggests that such associations might be exempt from anti-discrimination laws. Such cases rarely come up because statutes do not attempt to subject intimate associations such as families to anti-discrimination laws. But I assume that a family could assert a family/intimate association exemption should it be subject to anti-discrimination laws in various social settings. Moore v. City of East Cleveland also requires in a sense a family exemption from zoning laws. One might also argue that the right to marry protects the ability to form a family and marry the person one loves, even though doing so imposes costs on third parties. Cases like Zablocki are not necessarily cost free. A divorced father owing child support who starts a new family may have less resources available to support his earlier family. Finally, some, but not all, of the debate about same-sex marriages could be characterized as a debate about providing constitutional protection to gay men (or lesbians) who love each other and want the state to recognize and protect their mutual commitments and the responsibilities they accept that arise from those commitments. Many argue that constitutional law requires states to accommodate the love, commitment and loyalty of same-sex partners who seek to be married notwithstanding state law that only permits marriages between one man and one woman. I must admit that I have never understood the argument
RE: Two kinds of religious exemption arguments
This is very helpful. For Rick's argument, I still think the central question is why we would accommodate, even if the costs are relatively low, someone with religious objections, say, to working on an assembly line producing munitions, but not a secularist with a very tender conscience. (As always, we return to Seeger and Welch, but are those cases really limited to the particularity of conscientious objection against service in the military. Now one answer is that what's crucial about religious obligations, unlike merely conscientious ones, is that one is in fear of divine retribution for disobedience. I.e., God doesn't simply say it would be nice if you'd honor your parents (you never call, you never write), but, instead if you don't call at least once a week, I will make things very difficult for you in the afterlife (and don't even ask about the consequences of adultery or murder). As I've written in other contexts, I do treat this as a troublesome conflict of law' (and not simply or conflicting moral duties), and it is understandable why anyone who takes Divine Sovereignty really seriously-and who believes that the Divine Sovereign has a system of rewards and punishments to back up mere moral injunctions-may believe that the state must always take second place in any such conflicts. But, as Eugene well argues, it is not sensible to say that the state, even if understanding (and under a duty to engage in reasonable accommodation) must also suspend enforcement of its own laws whenever someone utters the magic words God is ordering me to do it, and I will pay a cost in the afterlife-or, depending on one's theology, even on earth-if I disobey.' We're always going to balance. Incidentally, if Hobby Lobby should win its ,case, will this not mean that Congress should know that it if it wants to be sure of achieving its purposes, it must tax and spend.' But what if Hobby Lobby says that my God tells me that I ought to render unto Caesar if and only if Caesar will not be spending any of the revenues on patent violations of divine commands'? I confess I've always found peculiar Randy Barnett's concession that Obamacare would have been perfectly constitutional, albeit unwise, a simple extension of Medicare, but that what doomed it was its reliance on various choice mechanisms, including the fabled mandate to purchase insurance in the first place. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, December 18, 2013 2:25 PM To: Law Religion issues for Law Academics (religionlaw@lists.ucla.edu) Subject: Two kinds of religious exemption arguments Rick Garnett's and (less directly) Michael Worley's posts highlight, I think, the fact that there are two kinds of religious exemption arguments that are often heard. The first is Rick's argument, at least in this instance, which focuses on what might see as low-cost accommodations. If there is a way of accommodating religious objectors that imposes very low costs on others, or on the government as a whole (which means others, albeit indirectly), why not do that? Religious headgear in courtrooms where the normal rule is no hats is a classic example. The second is an argument that exemptions should be given even when they are not low-cost -- when they do impose serious costs on third parties or the government, or at least can be credibly said to do so. That's the implication of strict scrutiny. And it's also the implication of most analogies to non-equality rights (though perhaps the time-place-and-manner analogy might be something of an exception, partly because it uses a test that's well below strict scrutiny). After all, free speech is often protected even when it imposes serious costs on others (e.g., Hustler, Snyder, NAACP v. Claiborne Hardware, Florida Star v. BJF, New York Times v. Sullivan). The Compulsory Process Clause is all about imposing serious costs on others. Many of the criminal procedure amendments, such as the Fourth Amendment and the privilege against self-incrimination, doubtless impose serious costs on others, though less directly. The same is true of most other non-equality constitutional rules. Now it seems to me -- though of course others disagree -- that the normative case for a right to impose costs on others through conduct simply because you think God requires that conduct is not an appealing case. Your God is your God, not mine; why should I lose some of my legal rights, or some of the benefits that various laws seek to confer on me, just because you want to do what your God tells you to do? And indeed, as I've mentioned before, I don't think that we would accept religious exemption claims in some of the cases where we accept free speech claims. The Free Speech Clause immunizes inflicting emotional distress
RE: Two kinds of religious exemption arguments
I would think that, if Hobby Lobby wins the case, this will just mean that future Congresses who are worried about such things should add a RFRA will not apply to this statute provision to statutes when they don't want any religious exemptions from those statutes. That's one advantage of the RFRA model over the Free Exercise Clause model -- if the legislature disagrees with the courts' view of what is the least restrictive means of serving a compelling government interest, or expects to disagree with it, it can override that view (assuming, of course, that there are enough votes for that in the legislature). Eugene Sandy Levinson writes: Incidentally, if Hobby Lobby should win its ,case, will this not mean that Congress should know that it if it wants to be sure of achieving its purposes, it must tax and spend.' But what if Hobby Lobby says that my God tells me that I ought to render unto Caesar if and only if Caesar will not be spending any of the revenues on patent violations of divine commands'? I confess I've always found peculiar Randy Barnett's concession that Obamacare would have been perfectly constitutional, albeit unwise, a simple extension of Medicare, but that what doomed it was its reliance on various choice mechanisms, including the fabled mandate to purchase insurance in the first place. ___ 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: Two kinds of religious exemption arguments
Eugene writes, Now it seems to me -- though of course others disagree -- that the normative case for a right to impose costs on others through conduct simply because you think God requires that conduct is not an appealing case. Your God is your God, not mine; why should I lose some of my legal rights, or some of the benefits that various laws seek to confer on me, just because you want to do what your God tells you to do? I think one answer to Eugene's question is that we value interests such as love and loyalty - particularly when they arise in certain kinds of relationships. Suppose the question is why should we respect the duties and obligations that arise out of family relationships. After all, I could say, it is Eugene's relationship to his wife, and children and family, not mine, that might require him to do things that impose costs on others. Of course, there are limits as to the scope of those costs we are willing to incur to accommodate family relationships, and a strict scrutiny regime may be the wrong way to evaluate and balance such costs. But that is different than saying we should never accommodate the duties and obligations arising out of family relationships if doing so imposes costs on others. I think it is reasonable to question which relationships in our society should receive accommodations and protection. Certainly, religion and family life may not exhaust the range of accommodated relationships. But that is a different question than asking whether these relationships warrant accommodation in the first place. Alan ___ 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: Two kinds of religious exemption arguments
I appreciate Alan's point, but I wonder how far it goes. First, I might not have been clear enough on this in my post, but I was speaking of what should be a matter of constitutional entitlement, or entitlement under a generally applicable exemption scheme. And we generally do not provide any constitutional exemption for love- and loyalty-based interests. Loyalty to a friend, a child, a parent, or a spouse won't give you a constitutionally mandated exemption from, say, a duty to testify. (The spousal testimonial privileges, I think, is a matter of common law and statute, not a constitutional mandate.) If you quit a job because of a desire to spend more time with your children, your spouse, or your aging parents, you will not get a constitutional entitlement to unemployment compensation. Second, even if we focus on exemptions created as a matter of legislative discretion (or common law), there are likewise very few in which familial love and loyalty exempt one from what would otherwise be a generally applicable rule. The spousal testimonial privileges are one example, but note that even they don't extend to children, parents, or other family members. Likewise, the few statutes that impose a general duty to report crimes sometimes exempt people from having to report on close relatives. The Family Medical Leave Act might be seen as a statute protecting familial love and loyalty against generally applicable employer policies, though there the matter might not be so much love and loyalty as providing social goods (care for sick family members). Perhaps the historical exemptions from the draft for fathers might qualify, though that too might be best seen as a means of providing social goods (financial support and parental guidance for children) rather than just avoiding intrusion on family relationships. So the analogy to family relationships, I think, cuts against any constitutional exemption regime (as in Sherbert/Yoder), though it can indeed support some statute-by-statute exemptions, including potentially high-cost exemptions. (As I mentioned, low-cost exemptions are subject to different arguments.) Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Wednesday, December 18, 2013 2:18 PM To: Law Religion issues for Law Academics Subject: RE: Two kinds of religious exemption arguments Eugene writes, Now it seems to me -- though of course others disagree -- that the normative case for a right to impose costs on others through conduct simply because you think God requires that conduct is not an appealing case. Your God is your God, not mine; why should I lose some of my legal rights, or some of the benefits that various laws seek to confer on me, just because you want to do what your God tells you to do? I think one answer to Eugene's question is that we value interests such as love and loyalty - particularly when they arise in certain kinds of relationships. Suppose the question is why should we respect the duties and obligations that arise out of family relationships. After all, I could say, it is Eugene's relationship to his wife, and children and family, not mine, that might require him to do things that impose costs on others. Of course, there are limits as to the scope of those costs we are willing to incur to accommodate family relationships, and a strict scrutiny regime may be the wrong way to evaluate and balance such costs. But that is different than saying we should never accommodate the duties and obligations arising out of family relationships if doing so imposes costs on others. I think it is reasonable to question which relationships in our society should receive accommodations and protection. Certainly, religion and family life may not exhaust the range of accommodated relationships. But that is a different question than asking whether these relationships warrant accommodation in the first place. Alan ___ 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: Two kinds of religious exemption arguments
Sorry. My mistake. My post was focusing on statutory accommodations because RFRA has been the focus of most of the recent discussion on the list. Eugene is quite right that the case for an analogy to family relationships is stronger for statutory accommodations. But there is some basis for analogizing the constitutional protection and accommodation of religious liberty to the protection and accommodation of family relationships. I don't want to overstate the point here, but the Court does discuss freedom of intimate association in Roberts and suggests that such associations might be exempt from anti-discrimination laws. Such cases rarely come up because statutes do not attempt to subject intimate associations such as families to anti-discrimination laws. But I assume that a family could assert a family/intimate association exemption should it be subject to anti-discrimination laws in various social settings. Moore v. City of East Cleveland also requires in a sense a family exemption from zoning laws. One might also argue that the right to marry protects the ability to form a family and marry the person one loves, even though doing so imposes costs on third parties. Cases like Zablocki are not necessarily cost free. A divorced father owing child support who starts a new family may have less resources available to support his earlier family. Finally, some, but not all, of the debate about same-sex marriages could be characterized as a debate about providing constitutional protection to gay men (or lesbians) who love each other and want the state to recognize and protect their mutual commitments and the responsibilities they accept that arise from those commitments. Many argue that constitutional law requires states to accommodate the love, commitment and loyalty of same-sex partners who seek to be married notwithstanding state law that only permits marriages between one man and one woman. I must admit that I have never understood the argument that such marriages impose costs on third parties or the general public. But clearly, many people believe that such costs exist. Would proof of some such costs, however modest they might be, justify denying same-sex couples the right to marry? Or would we insist that it should require a showing of very, very, high costs before we would allow a state to refuse to acknowledge and accommodate the right of two adults who love each other and are committed to caring for each other to marry. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Wednesday, December 18, 2013 4:17 PM To: Law Religion issues for Law Academics Subject: RE: Two kinds of religious exemption arguments I appreciate Alan’s point, but I wonder how far it goes. First, I might not have been clear enough on this in my post, but I was speaking of what should be a matter of constitutional entitlement, or entitlement under a generally applicable exemption scheme. And we generally do not provide any constitutional exemption for love- and loyalty-based interests. Loyalty to a friend, a child, a parent, or a spouse won’t give you a constitutionally mandated exemption from, say, a duty to testify. (The spousal testimonial privileges, I think, is a matter of common law and statute, not a constitutional mandate.) If you quit a job because of a desire to spend more time with your children, your spouse, or your aging parents, you will not get a constitutional entitlement to unemployment compensation. Second, even if we focus on exemptions created as a matter of legislative discretion (or common law), there are likewise very few in which familial love and loyalty exempt one from what would otherwise be a generally applicable rule. The spousal testimonial privileges are one example, but note that even they don’t extend to children, parents, or other family members. Likewise, the few statutes that impose a general duty to report crimes sometimes exempt people from having to report on close relatives. The Family Medical Leave Act might be seen as a statute protecting familial love and loyalty against generally applicable employer policies, though there the matter might not be so much love and loyalty as providing social goods (care for sick family members). Perhaps the historical exemptions from the draft for fathers might qualify, though that too might be best seen as a means of providing social goods (financial support and parental guidance for children) rather than just avoiding intrusion on family relationships. So the analogy to family relationships, I think, cuts against any constitutional exemption regime (as in Sherbert/Yoder), though it can indeed support some statute-by-statute exemptions, including potentially high-cost exemptions. (As I mentioned
