A few reactions: 1. Would courts see this as a Braunfeld v. Brown case? I.e. one in which the state's rule does not directly conflict with (i.e. visit some legal consequence as a result of) the religious duty -- as the Sunday closing law did not directly conflict with the Orthodox shopkeepers' Saturday Sabbath duty -- but rather the state's rule interacts with the religious duty to make it, indirectly, more costly to follow the latter (in that case, effectively meaning that the Orthodox business has to be closed two days a week instead of one). Braunfeld said that "indirect" burdens like this don't trigger strict scrutiny, in part because of the sort of parade of horribles that Steve Jamar raises. I can see differences between this case and Braunfeld, but the indirect-direct distinction would cut off the parade of horribles, and it would explain much of the pattern of accommodations Steve describes (changed or alternate days for a competition, test, or meeting itself, where otherwise religious duty would directly prevent the student from participating). 2. But if Eugene's hypo is as strict as he says, i.e. that students need the whole time allocated to complete the exam/competition, then the burden looks direct -- creating an absolute conflict rather than simply making it more difficult or complicated for the religious believer to put in as much time as others (requiring some choices of the believer, somewhat less sleep, etc.). The strictness of the hypo becomes more plausible as the relevant time period is shorter. The lost day makes up a greater percentage of a shorter time period; the cost of one lost day can be more easily spread over five or six other days than over two others. As the time available for cost-spreading is shorter, the burden surely at some point becomes direct, analogous to Sherbert rather than Braunfeld (e.g. imagine a 24-hour take-home in which 18 of the hours allocated were on the student's Sabbath). 3. RFRA may replace a flat direct/indirect distinction with a case-by-case analysis of the seriousness of the burden. That might be more consistent with the statutory term "substantial" burden (and I don't believe that RFRA's legislative history positively referred to Braunfeld as it positively referred to Lyng v. Nw. Indian Cemetery Prot. Assn., another pre-Smith case interpreting cognizable "burdens" narrowly). If this is the right interpretation of RFRA, there's plenty of room for a court to differentiate among the burdens involved in shorter and longer time periods. 4. Sherbert later read Braunfeld as resting also on the interest in having a uniform day of rest. Whatever one thinks of that rationale (and of course the day of rest has more of a religious background than this policy does), the need for uniformity seems even weaker in the case of a take-home exam or competition (why can't different students pick up and return them at different times, as is often done with exams and competitions?). There might be a different state interest here against giving a student an extra day: the state might worry that even if the student is not physically working on the exam on the Sabbath, he or she could be thinking about it and thereby gaining an advantage (however conscientious one might be, it could be hard to keep the problem out of one's head). In the case of the three-day exam, there is an easy less restrictive alternative: allow the student to take it over three days that don't include the sabbath (there's no problem with that except the weak interest in uniformity). Even a six-day period can be largely tailored to individual situations, now that assignments can be (and so often are) given out and submitted electronically. But for an assignment of a week or longer, avoiding the Sabbath isn't an option. Together with the greater ease of time-spreading, it seems to me this makes the case for a compelled exemption weaker in the week-long case -- even if it might be a good idea for the school to accommodate in that situation as well. My bottom line is that, as in most other exemption cases, there are sensible distinctions that can be made that neither reject all exemption claims nor grant them all. Tom Berg University of St. Thomas (Minnesota)
_____ From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Mon 3/27/2006 11:06 AM To: Law & Religion issues for Law Academics Subject: RE: Sabbatarians and deadlines I sympathize with Steve's general argument, but I wonder how it fits within the RFRA framework. Is it that having five days instead of six -- or two days instead of three -- isn't a substantial burden? That it is a burden, but denying the exemption passes strict scrutiny? That despite the RFRA language, some test other than strict scrutiny applies? -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Monday, March 27, 2006 8:01 AM To: Law & Religion issues for Law Academics Subject: Re: Sabbatarians and deadlines Where would this end? Sabbatarians who observe a day of no work, including studies, would need an extra 16 days to prepare for classes? Or an extra reading period to prepare for exams? And it would need to be worked out so that they get the same number of days between each exams? How is the law review competition not, for constitutional purposes, conducted by the school, btw? We try to accommodate those students by not having assignments due on Saturdays. And we make special arrangements for moot court competitions to hold arguments on Fri and Sunday for those participants. And so on. But I see no obligation to accommodate to the extent your inquiry suggests. Steve On Mar 24, 2006, at 7:57 PM, Volokh, Eugene wrote: Thinking about some of our UCLA Law School assignments, especially ones that have relatively short deadlines, led me to ask this: Do public universities in states with accommodation regimes (under RFRA or under Sherbert/Yoder-based state Free Exercise Clause rules) have an obligation to extend some deadlines for Sabbatarians? The law review competition, for instance, starts Thursday afternoon and ends Wednesday afternoon; it's generally believed that many students really do need all six days to do a good job. Say the competition was conducted by school (which it isn't, but say it was). Sabbatarians would have only five days on which they could do the competition, but others have six; would the school have an obligation to give Sabbatarians an extra day? What if this were a 72-hour take home exam, given Friday morning and due Monday morning? Eugene _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu <mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw <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. -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]> Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar <http://www.law.howard.edu/faculty/pages/jamar> "Rarely do we find men who willingly engage in hard, solid thinking. There is an almost universal quest for easy answers and half-baked solutions. Nothing pains some people more than having to think." - Martin Luther King Jr., "Strength to Love", 1963
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_______________________________________________ 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.
