I appreciate Mark's framing, and I agree that some courts might take
this view. But doesn't this illustrate the malleability and indefiniteness of
the exception / nonexception line (something that Fred Schauer has pointed to
in the past)? If the policy is seen as paying only for time worked, then
parental leave may indeed undermine this policy. Paid vacation and sick leave
are a different matter, since 10 days' vacation and 7 days' sick leave out of,
say, a 250-day work year still means that everyone who works a year gets paid
pretty much the same year's wages. Not so for parental leave, which is taken
at different rates by different employees.
On the other hand, if paid parental leave is a "fringe benefit," then
an exemption from a no-beards policy for people who have medical problems is
likewise a benefit: It (1) makes the job easier for some people, and (2) thus
makes the job more attractive to those people. But both also represent, I
think, some judgment of sympathy or support for the particular benefited
activity: a sense that medical problems, as well as parenting, are something
that's worth accommodating even at some cost to government interests. So again
I'm not sure what principled basis the courts can use to draw a distinction
here.
Eugene
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
> Sent: Tuesday, May 11, 2010 11:44 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: A question about the "must give religious exemptions to thesame
> extent as secular exemptions" theory
>
> No. A court would almost certainly analyze paid leave as follows. The paid
> leave
> policy is a neutral benefit given to parents, religious and nonreligious, in
> order to
> make the job attractive. It is not an exception to an otherwise generally
> applicable
> rule that one only is paid for time worked. Rather, it is an affirmative,
> neutral grant
> of a fringe benefit, just like paid vacation. It does not undermine any
> policy of
> paying only for time worked, any more than providing paid vacation or sick
> leave
> undermines such a policy. The policy is to pay for time worked and to pay
> fringe
> benefits. Paying fringe benefits does not undermine this policy.
>
> I'd bet a lot of money that the judges (including then Judge Alito) in FOP
> Newark
> would see it this way.
>
> Mark Scarberry
> Pepperdine
>
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Tuesday, May 11, 2010 11:31 AM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: A question about the "must give religious exemptions to thesame
> extent as secular exemptions" theory
>
> I think the analysis below mixes the purpose of the policy with the
> purpose
> of the exception. Here’s how I see the structure of the policies at issue:
>
> Purpose of the no beard policy: To preserve uniformity of appearance.
> Purpose of the medical exception: To accommodate people who have
> medical problems.
> Does the medical exception undermine the purpose of the no beard
> policy? Yes, but the police department thinks that accommodating people's
> medical needs is important enough to justify some undermining of the
> uniformity
> interest.
> FOP Newark result (which Rick endorses): Therefore the police
> department must equally accommodate people's religious beard preferences, even
> though this would similarly undermine the uniformity interest.
>
> Purpose of the you-must-work-to-be-paid policy: To get people to work,
> and to pay only for time worked.
> Purpose of the parental leave exception: To accommodate people who
> are having children.
> Does the parental leave exception undermine the purpose of the you-
> must-work-to-be-paid policy? Yes, but the government employer thinks that
> accommodating parents' needs is important enough to justify some undermining
> of
> the we-want-people-to-work-and-to-pay-them-only-when-they-work interest.
> FOP Newark result (which Rick endorses): Wouldn't this likewise
> suggest that the government employer must equally accommodate people's
> religious leaves, even though this would similarly undermine the
> we-want-people-
> to-work-and-to-pay-them-only-when-they-work interest?
>
> Eugene
>
>
>
>
> Rick Duncan writes:
>
> I think the issue under Lukumi is whether the parental leave policy is
> substantially
> underinclusive with respect to its purpose.
>
> The purpose of the no beard policy is uniformity of appearance.
>
> An exception for medical beards, but not religious beards, renders the policy
> underinclusive (medical beards are just as non-uniform as religious beards).
>
> What is the purpose of the parental leave policy?
>
> Probably something like to help new parents balance work and parenting.
>
> Does denying other kinds of leave (religious leave to go on a retreat) while
> allowing parental leave render the parental leave policy underinclusive with
> respect to its purpose?
>
> I think not. Everyone within the purpose of the policy (all parents of newborn
> children) are eligible for leave
>
> However, in the new police dept. case you mentioned, I am not sure the
> length of
> the beard should drive the outcome of the case.
>
> Here, the police dept exempts medical beards to the extent necessary to meet
> the
> medical needs of officers. Religious beards should also be entitled to
> accommodation to the extent necessary to meet the religious needs of officers.
> The relative length of the beards should not be constitutionally controlling,
> unless
> some beards are more non-uniform than others.
>
> _______________________________________________
> 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.
>
>
> _______________________________________________
> 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.
_______________________________________________
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.
