To Sandy, the “substantial burden” part of this will depend on what the plaintiff believes. If the Jewish prisoner believes that he has a religious obligation to eat Kosher meat, then there will be a “substantial burden” if the prison doesn’t provide Kosher meat. But by having such a broad view of what his religion requires, the prisoner creates other difficulties for himself. A sincerity problem perhaps, and certainly a compelling interest problem. I haven’t read many of these cases, but I have read some. And my sense is that if the prison supplies nutritious vegetarian food, no court would require the prison to build a Kosher kitchen.
To Marci, to the extent that the prisoner can only eat something his religion forbids, that’s the clearest form of a substantial burden. That kind of burden is what the Catholic Church claims here. No doubt that there are harder cases. The prison provides some Kosher foods, maybe enough to survive on, but not enough for the kind of diet that other prisoners have. I don’t have firm views about those situations, although I think it’s clear that the “government-requires-what-my-religion-forbids” situation is not the only case of a substantial burden. Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford Levinson Sent: Monday, October 01, 2012 4:36 PM To: Law & Religion issues for Law Academics Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" Must the prison supply kosher meat (and build a kosher kitchen) or is it enough that it supplies nutritious vegetarian food, even though other prisoners get meat? sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, October 01, 2012 4:28 PM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" Chris-- I take it you are arguing that for every religious prisoner with a dietary restriction, all of them can prove substantial burden, but the state may or may not win under RLUIPA based on the state's evidence of compelling interest? Is it a substantial burden where the believer can obtain 50% of the foods he/she seeks? I'm broadening this from the kosher food context, obviously. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -----Original Message----- From: Christopher Lund <l...@wayne.edu> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Sent: Mon, Oct 1, 2012 3:39 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" Imagine an observant Jew wants a kosher meal in prison. The prison doesn’t serve kosher food. Our plaintiff says, “This burdens my religion.” The prison responds, “No, it doesn’t. You’re not responsible for the food we choose to serve in prison. That’s a genuinely free and independent choice that we made. It has nothing to do with you.” So why is there a “substantial burden” there? I think it’s simple: The state is requiring the religious observer to do something his religion forbids. Maybe Judaism has overly broad notions of “responsibility.” But those notions are what they are, I think. The state can’t say, “Your theological notions of ‘responsibility’ are absurd,” any more than it can say, “Your theological notions about the food God requires you to eat are absurd.” Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu <mailto:religionlaw-boun...@lists.ucla.edu?> ] On Behalf Of Marty Lederman Sent: Monday, October 01, 2012 2:52 PM To: Law & Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" Rick, Alan: Allow me to ask the flip-side question of the one Alan raises: For those of us -- myself included, and you, and most of the members of this list -- who have long argued that the state is not responsible for the genuinely free and independent choices of individuals to use state $$ at a school of their choice, and that the state can surely ameliorate any risk of misperceived endorsement by simply issuing a clear disclaimer of neutrality and nonendorsement (see Pinette), is it really fair to attribute to the employer here the employee's decision to use contraception when (i) the coverage in the insurance plan is compelled by law; (ii) the plan can be used for literally hundreds of different types of medical goods and services, of which contraception is but one; (iii) the decisions whether or not to use the plan for contraception are the result of genuinely free and independent private choice and could not reasonably be attributed to the employer; and (iv) the employer is free to issue as many disclaimers as it wishes, explaining in no uncertain terms that it thinks contraception is sinful, that it deplores the law in question, that it would strongly urge its employees not to use contraception, etc.? If we're going to argue -- as many of us have -- that the state's involvement in the student's choice of a religious school is far too attenuated to implicate in any strong manner the "conscience" rights of the taxpayer whose funds eventually make their way, pursuant to many intervening decisions, to the religious school's coffers, why should we think there is a "substantial" burden on the employer's obligations of conscience in this case? _______________________________________________ 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.
