Tom, I understand the points in your brief and think it well done. My question relates narrowly to any problems there are for Christians. I can see many more problems for other faiths, including in particular your examples.
I suppose the eavesdropping on the priest/penitent case is Christian, and it burdens the exercise -- but is there not a sanction under the 9th circuit (use of the tape against the penitent)? Let's consider zoning perhaps. Is a denial of a variance a sanction? or a denial of a benefit? Or is it just a regulatory action which does not meet the 9th circuit test under any likely interpretation? Denial of a permit to build a church could substantially affect religious exercise of the religious community. Is this not a cognizable claim at all under RLUIPA under any possible reading of the 9th circuit test? Are there any others? Steve On Sat, Jun 13, 2009 at 6:05 PM, Berg, Thomas C. <tcb...@stthomas.edu>wrote: > I don't see what child abuse cases have to do with this, other than that > Marci likes to bring them up in order to try to discredit free exercise of > religion in general. > > The Ninth Circuit's standard is that "a 'substantial burden' [under RFRA] > is imposed only when individuals are (1) forced to choose between following > the tenets of their religion and receiving a governmental benefit ... or (2) > coerced to act contrary to their religious beliefs by threat of civil or > criminal sanctions." Our amicus brief, > http://www.narf.org/sct/navajonationvusfs/amicus_of_religious_liberty_law_scholars.pdf, > lists cases that might be dismissed at the threshold under that language. > They involve varying faiths; we weren't just concerned about Christians. > There are the cases of Hmong or some Jewish families' objections to loved > ones' autopsies, which were prime examples given to Congress of why RFRA was > needed, but which don't involve the imposition of civil or criminal > sanctions on anyone or deny anyone a benefit. There are also prisoner > cases, from multiple faiths, where the prisoners are not sanctioned but > simply have their religious materials taken away f! > rom them or are refused a worship space or a religiously required diet. > (The same restrictive "substantial burden" test could well spread to RLUIPA > or to state RFRAs.) The government also confiscated religious materials > (the sacramental tea) in Gonzales v. O Centro; that part of the case > involved neither denial of a benefit nor coercion to act contrary to > religious belief. The Ninth Circuit's test could also mean that government > eavesdropping on religious conversations, meetings, or houses of worship > creates no burden (entirely apart from whether a strong government interest > justifies the burden). The en banc decision essentially disapproved the > circuit's Mocklaitis decision that had held RFRA was triggered by the > government's surreptitious recording of a confessional between a prisoner > and his priest. Those are some of the examples that occurred to those of us > who joined the brief. > > As I said in my earlier post, there are ways to read the Ninth Circuit's > language narrowly to avoid these results. I expect that will happen in some > of the situations. But lawyers and judges ought not to have to parse or > manipulate the phrasing in order to cover these cases, which involve > substantial real-world inhibitions of religious practice and several of > which are core applications of the statute. (All this in addition, of > course, to the effects on Native American practices in the federal-lands > case themselves.) > > Tom > > ----------------------------------------- > Thomas C. Berg > St. Ives Professor of Law and Associate Dean for Academc Affairs > University of St. Thomas School of Law > MSL 400, 1000 LaSalle Avenue > Minneapolis, MN 55403-2015 > Phone: (651) 962-4918 > Fax: (651) 962-4996 > E-mail: tcb...@stthomas.edu > SSRN: http://ssrn.com/author='261564 > Weblog: http://www.mirrorofjustice.blogs.com > > ---------------------------------------------------------------------------- > -- Prof. Steven Jamar Howard University School of Law Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc.
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