It is worth noting that, although the opinion is a bit unclear, the actual penalty imposed on Sherrod for failing to comply with the lower court's order to send his child support payments to the state DHS (in compliance with state laws required in turn by Section 666) appears to be that he will have his federal income tax refund intercepted. The refund would be offset against the child support amounts he owes and already agrees he should pay to his wife. So arguably there's no burden at all since he hasn't suffered any detriment for failing to cooperate with the Section 666-inspired order. And my guess is that intercepting his tax refund is also more manageable for the government than changing 42 USC 666 to 42 USC 777 would be.
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 1:19 PM To: Law & Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 I appreciate the concerns about the manageability of such claims, but I wonder exactly what we mean by "unmanageability." Most granted exemption requests generally require considerable changes to government procedures -- the government may have to set up hearing mechanisms, alternative surveillance and investigation mechanisms that are needed to serve its interests (consider some of the proposed alternatives in the peyote case, aimed at making sure the peyote is indeed used responsibly, children can't get access to it, and the like), schemes for informing employees about what the rules are, devices for making sure that the rules are applied fairly, and so on. Here, by comparison, the change is high-level (it requires a Congressional act) but otherwise relatively cheap: Copy 42 USC 666 to 42 USC 777. Or is the concern one about management of subsequent claims by others who have other objections? That concern, after all, arises often with regard to traditional exemption requests, too. Eugene ________________________________ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Conkle, Daniel O. Sent: Friday, August 01, 2008 8:57 AM To: 'Law & Religion issues for Law Academics' Subject: RE: Religious freedom and 42 USC 666 As Eugene suggests, I think the burden, in reality, is indeed no different than in other contexts. What's different is the unmanageability of such claims, so it's something of a legal fiction to say that there is no burden. Better, perhaps, to say that there is no *constitutionally cognizable* burden, which is language the Supreme Court itself has used, if I'm not mistaken. Dan Conkle ******************************************* Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] ******************************************* ________________________________ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 11:42 AM To: Law & Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Perhaps Doug, Dan, and others are right that the case is enough like Bowen v. Roy to be disposed of by that precedent. But it seems to there is a specific religious exercise being burdened, in the sense of a specific religious prohibition that Sherrod doesn't want to violate: He thinks it's wrong for him to comply with orders issued under the Beast-numbered section, just as Thomas thought it was wrong for him to work on producing munitions, or Sherbert thought it was wrong for her to work on Saturdays. It's true that this is interference with a negative command (don't participate in Beast-authorized things) and not a positive command (do perform this particular ritual), but that distinction has rightly never made a difference in religious accommodation cases. Or am I missing something here? Eugene ________________________________ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach Sent: Friday, August 01, 2008 8:19 AM To: Law & Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Might it not be helpful in this context to look first at what the specific religious exercise is that is being burdened? That has the virtue of focusing the court's analysis while avoiding the vice of a forbidden centrality analysis. See Greene v. Solano County Jail, 513 F.3d 982, 988 (9th Cir. 2008). In Sherrod's case, I don't see any specific religious exercise that he can claim is being burdened. In the Lyng-like Navajo Nation case currently before the Ninth Circuit en banc, by contrast, I think the Navajo have a stronger claim than Sherrod does, since they have described specific religious exercises that are burdened by the government's action in allowing reclaimed sewage to be sprayed on mountains where they conduct religious ceremonies. Re Tom's question earlier, if San Francisco passed a law (rather than a resolution) saying "Santeria is a false religion" then I think the 9th Circuit said in AFA v SF that it might have decided it the other way. And under Lukumi it seems fairly clear that any such law would give rise to a colorable Free Exercise claim based on intentional discrimination. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 10:59 AM To: Law & Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Doug: I much appreciate your responses, and you may well be right. But I'm just not quite sure about the distinction between an objection "to any behavior demanded of him" and an objection "to the government's behavior." As I understand it, his objection is to both, or rather to the latter through the former. He says, "I object to your demanding that I go along with these things that are pursuant to 42 USC 666." He's not just saying that there's something wrong with the government's keeping records on him in room 666; he's saying that he refuses to go along with what the government demands of him, because the demand is made under 42 USC 666. Indeed, in the process he's objecting to the government's behavior, but the root of it is precisely the objection to what's demanded of him -- something that wasn't the case in what remained of Bowen, or for that matter in Lyng. Eugene ________________________________ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, July 31, 2008 7:51 PM To: religionlaw@lists.ucla.edu Subject: RE: Religious freedom and 42 USC 666 I understand that difference. It shows that the line is not perfectly clean. few lines are. But fundamentally, this guy's religious objection is not to any behavior demanded of him. It is to the government's behavior. He says, "I'll pay my child support if you the government renumber your statutes." It is the government's behavior that has to change to put him in compliance with his alleged religious beliefs, not his own behavior. Government wants him to pay $X to his wife, and he says he is perfectly willing to pay $X to his wife. But first, the government has to do something that he says is required by his religion. That is the essence of Lyng and Bowen. He is not trying to insulate his own behavior from regulation; he is trying to control the government's behavior. Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>: > Well, I thought about Bowen v. Roy, but my sense is that the > "internal procedures" point there was that the Roys weren't required to > actually do anything that violated their religious beliefs (the > government had stopped demanding that they provide Roy's social security > number, and five Justices took the view that the government indeed had a > constitutional obligation to so stop). The Roys just thought that the > government's practice of giving Roy a number was spiritually harmful. > > Here, the claimant seems to be arguing not that it's bad for the > government to have a section 666 in its statutes, but that it violates > his religion to comply with orders issued under that section. > Presumably, if the government copied or moved this to section 777, then > he'd be OK with complying, not because the government changed its > internal procedures, but because the action that he would be required to > do would no longer be pursuant to a statute numbered with the number of > the beast. So that seems different from Bowen v. Roy, no? > > Eugene > > Tom Berg writes: > >> To the extent that he objects to paying the support even if >> the provision is renumbered, because the requirement is of >> the antichrist and the 666 simply evidences that, then I >> assume most courts would hold there's a burden but it's >> overcome by a compelling interest. To the extent he says his >> objection would be cured by renumbering the provision, then >> doesn't this seem like Bowen v. Roy -- and therefore not a >> cognizable burden -- in that the numbering of a statute is a >> matter of the government's internal procedures like the >> assignment of a social security number in Roy? If >> renumbering the provision would meet the objection, then the >> objection seems separable from the payment requirement itself >> and thus (arguably) concerns an internal government matter. >> It's not clear how much the Roy principle applies to RFRAs, >> but this might be the explanation for rejecting his claim >> that fits best into the previous law. > _______________________________________________ > 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. > > > Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713
_______________________________________________ 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.
