I guess I just disagree that the parental leave policy would be viewed as an exception to the work-for-pay policy, rather than as an affirmative policy designed to subsidize childbirth and parenting of employees.
If the policy is an affirmative one (as I view it), then it is not underinclusive, because all parents with infants are covered. How about a govt employer who allows paid leave for parents to attend parent-teacher conferences in public schools, but not private schools. If I am denied leave to attend a conference at my daughter's private religious school, do I have a Fr Ex claim under a law that is not generally applicable? Cheers, Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, Volokh, Eugene <vol...@law.ucla.edu> wrote: From: Volokh, Eugene <vol...@law.ucla.edu> Subject: RE: A question about the "must give religious exemptions to the same extent as secular exemptions" theory To: "'Law & Religion issues for Law Academics'" <religionlaw@lists.ucla.edu> Date: Tuesday, May 11, 2010, 11:30 AM 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.
