In Texas Monthly, Justice Brennan suggested that the challenged tax exemption for religious periodicals burdened nonbeneficiaries by increasing their tax bills. Does that constitute a constitutionally cognizable harm to third parties? If it does, does this mean that any exemption which imposes costs on the general public harms third parties? (That might include almost all exemptions -- since many accommodations require the state to incur administrative costs.) If it doesn't, does that mean that any exemption as to which the costs are spread to the general public does not harm third parties?
What about the Catholic Charities case? Does exempting a religious institutional employer from the obligation to provide coverage for medical contraceptives in their employees' health plan harm third parties? Would the answer change if the state provided such coverage to employees of religious institutions at the state's own expense?
Even the Amos case isn't as obvious a case of harm to third parties as it first appears. Religious institutions spend the money donated to them by believers to further the religious beliefs and practices of their congregation and community. Those spending decisions are constrained by religious doctrine. But they certainly have market consequences. The local caterer that specializes in pork chops and baby back ribs isn't going to get a lot of contracts from my Synagogue. Is that a harm to third parties? (I can rearrange this hypothetical to include an exemption, if necessary.)
Can we look at other fundamental rights for guidance on this question? If we protect freedom of speech and association, notwithstanding the fact that the exercise of these rights imposes costs on third parties or the general public, is that relevant to our understanding of the scope of free exercise rights and the permissibility of religious accommodations. I am not suggesting that the jurisprudence of one right must necessarily parallel the jurisprudence of other rights. But I think we can be informed in our inquiry by looking at other rights, and differences in the jurisprudence of different rights ought to be susceptible to explanation and justification.
Alan Brownstein UC Davis
At 08:43 AM 3/11/2005 -0500, you wrote:
As usual, it appears that we will not be able to change one another's minds w/r/t the question whether piecemeal legislative accommodations are superior to, or more constitutionally acceptable than, judicial accommodations pursuant to a general statutory mandate. (And we're certainly not moving the conversation materially beyond where Chip and Doug and Michael McConnell and Bill Marshall and Jon Nuechterlein, and others, left it several years ago.)
So let me ask another question, prompted by Marci's suggestion that accommodations that "harm others" are unconstitutional. Surely, harm to other private parties has played a large role in accommodation doctrine. The general notion that the state should not require private party A to suffer in the furtherance of B's religious objectives or beliefs is a compelling and recurrent theme, and it explains Thornton and Hardison, not to mention the important Harlan concurrence in Welsh and the Court's decisions to expand the military exemption beyond religious objectors in that case and in Seeger. And I agree with Marci that religious exemptions to vaccination statutes, and to child welfarre laws, should generally be unconstitutional because of the serious harms they cause.
But then how to explain the two cases in which the Court has approved accommodations -- Zorach and Amos? We've recently discussed the serious harm to nonparticipating students in the release-time cases. And in Amos, the respondent (Mr. Mayson) lost his job of 16 years because he failed to qualify for a temple recommend. 483 U.S. at 330. No small harm to third parties. Is there any way to make sense of this aspect of accommodation doctrine? What role should harm to third parties play in assessing a religious exemption?
----- Original Message -----
From: <mailto:[EMAIL PROTECTED]>[EMAIL PROTECTED]
To: <mailto:religionlaw@lists.ucla.edu>religionlaw@lists.ucla.edu
Sent: Friday, March 11, 2005 8:19 AM
Subject: Re: Institutional Capacity to Manage Exemptions
Ellis--- I'm not sure what you mean by across-the-board exemptions. If laws like RFRA, they are illegitimate, but if they are tailored to particular practices, and the public good does not suffer from the exemption, I think they are crucial to the proper balance of liberty and order. The one thing a society cannot do is wish away the intense power of religious belief in people's lives, whether that government is the Soviet Union when it tried unsuccessfully to destroy the Orthodox Church, China now trying to suppress Falun Gong and Christianity, or our country. Religion is a given part of human existence, and deserves to be given as much latitude as possible. Thus, the question is not whether, but where to draw the line on exemptions. A mandatory exemption system is inimical to the public good, especially those who are most vulnerable. But an exemption that harms others is contrary to the scheme of ordered liberty the Constitution constructs.
Marci
But why should they be granted across-the-board exemptions? It won't do to say that the First Amendment requires such, because that is the issue. Why should the First Amendment be interpreted to require such?
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