True, but after that I imagine the government would put a lien on his personal property or use other methods short of prison to enforce the judgment against him. Since he's agreed that he is obligated to pay, and would having no problem paying his wife or the trial court directly, none of these methods of extracting child support payments from him without his cooperation would seem to burden his religious exercise, precisely because it is mere cooperation with one part of the government that he feels would violate his religious beliefs. A harder question under SB would be if he had a sincere belief that he should not pay child support at all; but that would likely be disposed of under the CGI/LRM analysis.
It seems important in substantial burden cases, be it under RFRA, state RFRAs, RLUIPA or Sherbert/Yoder, for courts to first look at what the specific claimed religious exercise (negative or positive) is, whether that exercise is sincere, and what the burden or penalty imposed for engaging in the exercise is. A lot of the claimed problems with RLUIPA and the RFRAs disappear if these standards are applied universally, especially when the relative prevalence of different classes of cases is factored in. For example, lack of sincerity is something that should eliminate a significant number of prisoner RLUIPA claims, but prison systems and courts have been reluctant to uniformly apply that standard before reaching the SB analysis. If a sincerity filter were applied regularly by prison systems and the courts, then a number of harder RLUIPA prisoner cases would be eliminated without raising unnecessary SB or constitutional questions. (Perhaps even Sherrod's case would have been eliminated.) Also, in my view the occasional accommodation of a sincere Sherrod-like plaintiff who could demonstrate a true burden would seem to be worth the benefit of protecting the religious liberty of a great number of people. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 1:42 PM To: Law & Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Perhaps this is indeed so on the facts of this particular case; but I take it in a future case, there might be no tax refund to offset this against, no? Eugene Eric Rassbach writes: ________________________________ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach Sent: Friday, August 01, 2008 10:34 AM To: Law & Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 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.
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