Derek Gaubatz writes:
> I'm not so sure that I agree with Eugene's analysis. What's
> the difference between saying you're only eligible for
> unemployment compensation if you forego certain religious
> conduct (Sherbert) and you're only entitled to disability
> benefits if you forego certain religious conduct? But
> certainly if the law expressly provided a system of
> individualized exemptions that allowed disability benefits to
> go to nonreligious charities but prohibited tithing, it would
> seem to be an easy case. I also have a recollection of a rfra
> case finding, in the bankruptcy context, that it was a
> substantial burden to prevent a debtor from tithing.
If there was such an individualized exemption system, then
Sherbert might still offer protection, even post-Smith. But I think
that post-Smith, it is indeed accurate to say that "a ban on charitable
contributions from disability checks" -- a flat ban, with no
individualized judgment about which charities are fine and which aren't
"would probably be constitutional."
Of course I agree that a *discriminatory* rule that allowed
disability benefits to go to nonreligious charities but not religious
ones is indeed a Free Exercise Clause violation; that was my point.
Eugene
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