I agree with a lot of the points that Alan makes here. I must say, though, that I always thought that the weakest argument against the accommodation statute in Thornton was the argument (not found in the majority opinion, if memory serves) that it singled out one particular religious practice -- observing a Sabbath -- while not accommodating other religious beliefs in the workplace. It seems to me that something like the Sabbath concept -- some day for religious services, or even some day for rest and contemplation even if it is not theologically mandated or specifically for organized worship -- is one of the more widespread features common to various faiths, so that a very wide range of religions could receive protection under this statute. For some of the reasons I mentioned in the earlier post, with which Alan seemed generally to agree, I think that the state could quite legitimately address the Sabbath issue alone: it is a recurring issue for workers of many faiths, one that might lend itself to a more particularized solution than what could be achieved by a general workplace religious-accommodation provision like that in Title VII. (These arguments, of course, would not provide no defense for an accommodation statute limited to Sunday observers.) The worrisome problem in Thornton, it seems to me, was not denominational discrimination, but rather the burdens imposed on others without any statutory weighing of the competing interests -- and I agree with Alan that the fact that the burdens would fall on a narrow class (esp. other employees) is part of that concern.
Tom Berg University of St. Thomas School of Law (Minnesota) ******************* Thomas C. Berg University of St. Thomas School of Law Mail # MSL 400 1000 La Salle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 [EMAIL PROTECTED] ************************ -----Original Message----- From: A.E. Brownstein [mailto:[EMAIL PROTECTED] Sent: Wednesday, May 19, 2004 12:59 PM To: Law & Religion issues for Law Academics Subject: RE: RE: Medical workers who don't want to participate in abortion s I agree with a great deal of what Tom says -- and the points where we disagree may be more of a matter of perspective than substance. My primary point was that formal neutrality should not be dispositive in evaluating the constitutionality of exemptions. I think Tom agrees with that. The basic question is what makes an exemption problematic for Establishment Clause purposes. I think one answer has to do with whether the identity of the beneficiaries of the exemption or those who bear the cost and burden of the exemption raises Establishment Clause concerns. So what are those concerns. One relates to religious discrimination. Favored faiths should not be uniquely relieved of burdens on their religious practice that many faiths experience, the costs of accommodation should not be narrowly assigned to disfavored faiths or nonbelievers, and courts should carefully review an accommodation that protects one group's religious liberty if the price of doing so is to make it more difficult for other faiths to practice their religion. I think Tom is right that these are not issues of relative burdens. They are qualitative questions about the identity of the beneficiary class and the burdened class. But I don't think Thornton itself really involved an analysis of relative burdens as much as it focused on religious favoritism -- the singling out of Sabbath observers for especially favorable treatment and the allocation of costs to nonreligious individuals or members of faiths that do not observe a Sabbath. Tom also argues, I think correctly, that statute-specific accommodations may be justified -- even when they primarily benefit one religious denomination. There may be good reasons for allowing the legislature to act with specificity. The sect specific nature of the accommodation may not reflect unfair denominational discrimination. I agree. And if there is a problem, the preferable resolution should not be to invalidate the accommodation but to generalize it (either constitutionally or by statute) so that more faiths are benefited by it. I agree. To me, this is simply the flip side of the same coin. The formality of statute specificity should not doom an exemption. Courts should look behind the formal specificity to see whether the accommodation is really unfairly discriminatory in its purpose or effect. And the formal neutrality of an exemption should not validate an accommodation. Court should be able to look behind the formal neutrality to see whether the accommodation is really unfairly discriminatory in its purpose and effect. Another concern relates to the cost of accommodation -- leaving aside any issue of religious favoritism or discrimination. Thornton suggests that if the mandated accommodation imposes too great a burden on third parties, the Establishment Clause may be violated.Tom argues that the Thornton analysis should not apply if both secular and religious individuals may be beneficiaries of the accommodation. There is a lot of merit to what Tom says here too. But there may be another way to think about this. I think the problem of the magnitude of the burden on third parties may transcend the generality of the accommodation at least in one sense. I think the primary concern here is that an accommodation imposes to high a burden or cost on too narrow a class of individuals. A loses a great deal to protect B's ability to practice his or her faith. A's problem really isn't so much that B's religious practice is accommodated -- it is that the cost of the accommodation falls so heavily and disproportionately on A. If religious liberty is a value society respects and religious practice deserves protection against burdensome regulations, the cost of doing so should be spread among as large a population as possible. Often there are ways for the state to mitigate and spread the burden of religious accommodations. In the abortion context, a public hospital may incur administrative costs if it protects a hospital worker's conscientious objection to assisting in the performance of abortions (by arranging back up personnel, for example) -- or it may allow the burden of the accommodation to fall on a patient who may have to delay the procedure (and incur higher health risks). In the Catholic Charities case, if California exempted Catholic institutions from a state law requiring employers to provide their employees medical contraceptive insurance coverage, California could pick up the cost of providing insurance coverage for employees who would otherwise not receive these insurance benefits. One can imagine a rule that does not invalidate an accommodation that imposes significant costs on third parties, but rather requires the state to spread or absorb those costs. For someone like me, the problem is to develop doctrine that both protects religious liberty and rights of conscience -- but also spreads the cost of such accommodations. Maybe that is too much to ask of constitutional law in this area. But I think the questions is worth asking even if there is no positive answer to it. (Oh. As for the abortion accommodation statute, Tom and Eugene discuss, I think beliefs about abortion are extremely varied and cross religious, secular, denominational, and intra-denominational lines. I would not view such a statute as problematic -- other than my concern about spreading the costs of the accommodation.) Alan Brownstein UC Davis At 11:26 PM 5/18/2004 -0500, you wrote: >Alan raises a fair point with his hypothetical law giving everyone the right >to take Sunday off if s/he wants. Facial neutrality might well not be >enough in that case. But the major problem there, it seems to me, is the >blatant distinction in fact between different religious faiths with Sunday >as opposed to non-Sunday sabbaths. I think that it makes more sense to >address that concern directly, rather than have it trigger a separate >inquiry (like the one in Thornton) about the relative burdens that it >imposes on others versus burdens it removes from the accommodated workers. >The latter inquiry is the one that, to me, seems unwarranted and not quite >on point. > >One could say, of course, that the accommodation of abortion objections >likewise accommodates certain faiths -- those opposed to abortion -- and not >others -- those who object to participating in other medical procedures. >That raises the difficult question, which we've discussed on list before, of >when an statute-specific accommodation becomes denominational >discrimination. I might concede Alan's point that you need to look behind >the face of the accommodation somewhat to see if there's just pure religious >favoritism going on. Gillette v. U.S., which upheld excluding selective COs >from the draft exemption statute, suggested that there needs to be a >"neutral, secular reason" for the limited scope of the exemption. But I >don't think that such review of the scope of an exemption -- review of why >it wasn't broader or more general in its terms -- should be overly strict. >There are often good practical reasons for addressing only one issue of >conscience at a time. It may be the only issue of conscience raised by a >particular statute. And often it's easier for the legislature to set forth >a clear rule for one context than for many contexts: trying to address a >whole range of contexts at once tends to force the accommodation into the >form of a generalized balancing test that, even if not impermissible, is not >always ideal. I would protect against denominational discrimination in >statutory exemptions not by doing away with such exemptions, but by backing >them up with free exercise exemptions, which by their nature will be >oriented toward minority faiths. > >If the purpose of Alan's hypothetical Thornton-like law is to accommodate >people's conscientious desires (religious and secular) for days off, I can't >see any neutral, secular reason for limiting it to Sundays. It's a grossly >underinclusive accommodation-of-conscience statute. The abortion >accommodation, on the other hand, could rest on a judgment that abortion is >a particularly deeply felt issue (a judgment that the newspapers confirm >every day), or is different because it touches on matters concerning what is >a life worthy of respect, etc. All of these seem much more defensible >reasons for accommodating that particular problem of conscience than are any >of the reasons for giving only Sundays off. (Again, if the purpose of the >Thornton-like law is to accommodate conscience, I can't see any plausible >reason for limiting it to Sundays only. The only possible reason to favor >Sundays is to encourage a single day of rest -- a sort of soft version of >the argument for blue laws that succeeded in McGowan. But in that case its >purpose is not accommodating conscience.) > >Tom Berg > > > > > >******************* >Thomas C. Berg >University of St. Thomas School of Law >Mail # MSL 400 >1000 La Salle Avenue >Minneapolis, MN 55403-2015 >Phone: (651) 962-4918 >Fax: (651) 962-4996 >[EMAIL PROTECTED] > >************************ > > >-----Original Message----- >From: Alan Brownstein [mailto:[EMAIL PROTECTED] ><mailto:[EMAIL PROTECTED]> ] >Sent: Sunday, May 16, 2004 4:22 PM >To: Berg, Thomas C.; Law & Religion issues for Law Academics >Subject: RE: RE: Medical workers who don't want to participate in >abortion s > > > >Tom and Eugene's thoughtful comments are pretty persuasive, but I'm not >entirely convinced that we can ignore what Tom calls the focus on >relative benefits whenever a law facially applies to both religious and >nonreligious groups. I appreciate the importance of facial neutrality or >generality, but why should that completely outweigh the burden on third >parties, for example,or whether the law has the effect of >disproportionately benefitting certain religions and not others. Or to >put it another way, should we entirely ignore the purpose of the law, and >whether the burdens created by the law disproportionately impact >nonreligious individuals or members of minority faiths. > >A lot depends on what is considered a general and neutral law. Don't both >the beneficiaries of an accommodation and those who bear the costs of the >accommodation need to be taken into account? Does a law tracking Thornton >that requires employers to accommodate everyone who wants Sunday off >violate the Establishment Clause? Do we resolve concerns about religious >institutions discriminating on the basis of religion in hiring staff to >operate publicly funded programs by allowing all ideologically oriented >organizations receiving public funds to discriminate on the basis of >religion in hiring? > >I don't claim to have the answers to these questions. I'm just not sure >that generality of beneficiaries is a sufficient principle to adequately >further Establishment Clause values. > >Alan Brownstein >UC Davis > > > I agree with Eugene that you probably need an additional step in the > > argument to fit the abortion conscience exemption into the Texas Monthly > > test -- namely "that when a law treats religious and nonreligious >people and > > institutions equally, courts shouldn't guess what fraction of the >benefits > > flow to the religious." > > > > It seems to me, though, that this additional step is not just Eugene's >own > > argument, but is one that the Court has explicitly adopted in Mueller v. > > Allen and in Zelman v. Simmons-Harris. In both those decisions, the >Court > > explicitly found it irrelevant that a very large percentage of benefits >of a > > neutral program based on individual choices flowed to religious >education, > > because such statistics cannot produce a judicially administrable test >and > > because the program did not skew the individuals' choices toward >religion. > > And both of those decisions involved financial subsidies in the Court's >view > > (vouchers in Zelman and tax deductions in Mueller -- the latter might >not be > > best characterized as financial subsidies, but certainly the former >are). > > If the Court doesn't look at the percentage of benefits flowing to >religion > > under a religion-neutral financial subsidy program, then as I argued >before, > > a fortiori it shouldn't (and wouldn't) do so in the case of a > > religion-neutral exemption/accommodation for individual conscientious > > conduct, which lies even further away from the core theoretical and > > historical concerns of the Establishment Clause (and that is true even >if > > it's an exemption from sanctions by private employers.) > > > > For this reason, I don't think that in order to immunize accommodations >of > > conscience that are neutral between religious and secular conduct from > > Establishment Clause challenge, one needs to buy into Eugene's principle > > that equal treatment of the religious and secular *always* satisfies the > > Establishment Clause. In other contexts, such as direct aid, the >delegation > > of government power, or government speech in public schools, the > > Establishment Clause case law still seems to say that religious > > beneficiaries and ideas must be treated differently from secular ones. >But > > again, one can make a quite convincing argument -- even if it is not > > entirely open and shut -- that those situations are much closer to the > > theoretical and historical core of the Establishment Clause than are > > situations where the government acts simply so that individuals can >continue > > to pursue their religious exercise without restriction (governmental or > > private). > > > > So I'd still say that Eugene's question about religious-and-secular > > accommodations is not really much of an open question under current >judicial > > doctrine. Others on list, of course, might advance normative theories >under > > which Thornton could apply even to a law that accommodated secular >conduct > > as well. But I don't see much in the case law to support them. And I >also > > don't think that such a theory would stand up normatively either, >because > > accommodations to allow individual religious exercise to proceed >unmolested > > are far from the core concerns of the Establishment Clause. It would >be a > > double stretch of the Establishment Clause to apply it to a law that not > > only seeks simply to ensure that individual religious conduct is left > > unrestricted, but that does so by giving the same protection to the > > equivalent secular conscientious conduct. > > > > Tom Berg > > University of St. Thomas School of Law, Minnesota > > > > > > _____ > > > > From: Volokh, Eugene [mailto:[EMAIL PROTECTED] ><mailto:[EMAIL PROTECTED]> ] > > Sent: Sun 5/16/2004 2:00 PM > > To: Law & Religion issues for Law Academics > > Subject: RE: RE: Medical workers who don't want to participate in >abortions > > > > > > > > I like Tom's argument, but I don't think it's quite as open and shut as >the > > post below suggests. The property tax exemptions for nonprofits really >did > > end up flowing to "a large number of nonreligious groups." The right >not to > > be dismissed or disciplined for not participating in abortions will > > overwhelming benefit, I suspect, religious objectors; there certainly >are > > some secular conscientious objectors to abortion (e.g., Nat Hentoff, to >name > > a public one), but I'd guess that these are a rather small subset of all > > beneficiaries of the law. > > > > > > This having been said, I agree that this *should* be the rule, because I > > think that when a law treats religious and nonreligious people and > > institutions equally, courts shouldn't guess what fraction of the >benefits > > flow to the religious. That's my view as to school choice programs, and > > it's my view as to accommodations of religious and conscientious >objectors. > > (I don't view the Free Exercise Clause as making a difference here -- >the > > abortion conscientious objector laws protect even against firings by >private > > hospitals, where the Free Exercise Clause isn't involved even under the > > Sherbert/Yoder framework; and if we're talking about broader "free >exercise > > values" that are applicable even to private action, then it seems to me > > equally legitimate to invoke such values as a support for subsidies for > > private education, which likewise help religious parents exercise their > > religion.) As I mentioned in my original post, I think the equal >treatment > > of religious and secular objectors provided by the abortion >conscientious > > objector laws should indeed distinguish them from the law in Thornton >(even > > though the Thornton opinion mentioned the religious preference only in > > passing). But I would have thought that this would be controversial, > > because many people do not take my Establishment-as-equal-treatment > > position. > > > > > > So let me ask: Does anyone on the list think that the Thornton >doctrine is > > *not* limited to government-mandated exemptions that are for religious > > objectors only, and that it might apply to at least some such exemptions > > that facially cover nonreligious conscientious objectors, too? If the > > answer is no, then there need be no further discussion. But if the >answer > > is yes, then I wonder how the abortion conscientious objector laws would > > fare under that view of Thornton. > > > > > > Eugene > > > > Tom Berg writes: > > > > As far as caselaw doctrine goes, isn't Eugene's question answered by the > > Brennan plurality opinion in Texas Monthly (only a plurality, but also >the > > opinion in the case most restrictive of accommodations)? The Court >struck > > down the exemption from sales taxes for religious publications. The > > plurality first distinguished the property tax exemptions upheld in >Walz, > > among other programs, on the ground that "the benefits derived by >religious > > organizations flowed to a large number of nonreligious groups as well. > > Indeed, were those benefits confined to religious organizations, they >could > > not have appeared other than as state sponsorship of religion." 489 >U.S. at > > 11 (citing Thornton v. Caldor, among others). > > > > > > The plurality then proceeds to articulate a test for the > > constitutionality of such exemptions: "Insofar as th[e] subsidy [of a >tax > > exemption] is conferred upon a wide array of nonsectarian groups as >well as > > religious organizations in pursuit of some legitimate secular end, the >fact > > that religious groups benefit incidentally does not deprive the subsidy >of > > the secular purpose and primary effect mandated by the Establishment >Clause. > > However, when government directs a subsidy exclusively to religious > > organizations that is not required by the Free Exercise Clause and that > > either burdens nonbeneficiaries markedly or cannot reasonably be seen as > > removing a significant state-imposed deterrent to the free exercise of > > religion, it [violates the Establishment Clause]." Id. at 14-15. > > > > > > The problem with the exemption in Thornton, as Eugene notes, was > > that it "burden[ed] nonbeneficiaries markedly" through its absolute > > weighting of the balance in favor of the religious employee over the > > employer and over the secular employees who would have to replace him >on his > > Sabbath. The passage from Texas Monthly seems to make clear that this > > question of "burden[ing] nonbeneficiaries markedly" kicks in only when >the > > exemption is religion-specific. When, as is almost certainly true in >the > > abortion conscience case, the exemption "flow[s] to a large number of > > nonreligious [persons] as well," the focus on relative burdens is >simply not > > triggered. The exemption, as Sandy observed, is viewed more as the >kind of > > "secular" adjustment of private economic relations that the legislature >does > > all the time, and therefore subject to minimal or no review. > > > > > > I think this analysis applies a fortiori to the abortion case > > because (1) the Brennan plurality is the Texas Monthly opinion most > > restrictive of legislative accommodations and (2) the opinion treats tax > > exemptions as a financial subsidy, which is a category of government >action > > that strongly implicates the Establishment Clause, and a category that >is > > much harder to apply to an exemption from performing abortions. > > > > > > On the latter point, all the Establishment Clause decisions that > > strike down applications of a facially neutral statute that incidentally > > helps religion involve either (a) direct financial aid to religion >(Lemon), > > (b) affirmative, intentional promotion of religion in the public schools > > (Wallace v. Jaffree), or (c) delegation of government power to a >religious > > group (Larkin, Kiryas Joel). Simple exemption of religious conduct from > > restrictive regulation is quite different from these cases, largely >because > > of the implications of the Free Exercise Clause. I would say that it >is so > > different that religion-specific exemptions should be approved and in >many > > cases should be mandated. That is not the Court's position (Smith), >but the > > Court clearly does recognize that exemption is different from >affirmative > > promotion (see Presiding Bishop v. Amos). The different status of an > > exemption surely is enough to mean that exempting religion along with > > secular forms of conscience does not trigger the Establishment Clause -- > > that is, it does not trigger the inquiry of Thornton and Texas Monthly >about > > the relative degree of burden that the exemption imposes on others. > > > > > > Tom Berg > > University of St. Thomas School of Law, Minnesota > > > > > > > >_______________________________________________ >To post, send message to [EMAIL PROTECTED] >To subscribe, unsubscribe, change options, or get password, see >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
