I can see why the costs to the religious claimant of avoiding the burden on religious liberty may be relevant to the substantiality of the burden. But I don't see why the costs to the government or third parties in avoiding the burden is relevant to the substantiality of the burden. The latter goes to infringement and the former goes to justification. Have I misunderstood the question?
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Monday, February 13, 2012 2:17 PM To: Crowley, Donald; Law & Religion issues for Law Academics; conlawp...@lists.ucla.edu Subject: Re: Contraceptives and gender discrimination Having been accused (perhaps justly) of being a source of dispirit in my earlier posts (about religious institutions' ability to switch to co-religionist hiring, and about measuring the sincerity of objections by for-profit employers), I will say this -- the law of religious liberty purports to have standards. These are not supposed to be seat of the pants, "what feels right to someone" standards -- whether under the Free Exercise Clause, or under RFRA, they are supposed to be rigorous, and to be equally respectful of all faiths and all claims. So if RFRA requires a showing of a substantial burden on religious exercise, we are entitled to interrogate re: the question of what constitutes such a burden, and to be prepared to analyze the answer from those who oppose contraception in precisely the same way we would analyze the answer from those who oppose equal employment rights for women, or payment of minimum wages. And the question of the costs of avoiding the burden seems relevant to its substantiality. Am I wrong about that? Why?
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