Marci, read what you quoted. Read the passages I have boldfaced below. Bowen and Lyng were explicitly about government actions that required nothing of the plaintiffs. Those plaintiffs were not required to take any action at all. The government caused problems for plaintiffs’ religion, but it did not require them to do anything that violated their own understanding of their religion. A lot of people don’t like that distinction, but that’s what it was.
The ACA plaintiffs are required to take action that violates their own understanding of their religious obligations. Many arguments remain beyond that point, but Bowen and Lyng do not address those arguments. Bowen and Lyng were cases that did not reach that first step. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Tuesday, October 02, 2012 9:44 AM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" I think Lyng (which explicitly relies on Bowen) is indeed relevan to a substantial burden analysis, because it states that even a potentially disastrous burden is not the sort of burden that supports a finding of a free exercise violation. It supports the view that a subjective view of burden does not establish burden, and that an incidental burden is insufficient. The possibility that an employee who does not share the faith will use, in conjunction with a doctor's advice, contraception and abortion medical services is a classic incidental burden. The employer has not been foreclosed from preaching against contraception and abortion in every conceivable context, and need never purchase it for an employee, and in fact cannot even know if the employee is using it given doctor-patient privilege. (Honestly, as others have implied, if parochial schools are going to rely on the intervening actor theory to avoid an Establishment Clause violation, they have real problems here.) This is from the Lyng syllabus, which I'm including because it is more compact than the full language of the opinion: In Bowen v. Roy, <http://www.law.cornell.edu/supct-cgi/get-us-cite/476/693> 476 U.S. 693 -- which held that a federal statute requiring States to use Social Security numbers in administering certain welfare programs did not violate Indian religious rights under the Free Exercise Clause -- this Court rejected the same kind of challenge that respondents assert. Just as inRoy, the affected individuals here would not be coerced by the Government's action into violating their religious beliefs; nor would the governmental action penalize the exercise of religious rights by denying religious adherents an equal share of the rights, benefits, and privileges enjoyed by other citizens. Incidental effects of government programs, which may interfere with the practice of certain religions, but which have no tendency to coerce individuals into acting contrary to their religious beliefs, do not require government to bring forward a compelling justification for its otherwise lawful actions. The Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government. Even assuming that the Government's actions here will virtually destroy the Indians' ability to practice their religion, the Constitution simply does not provide a principle that could justify upholding respondents' legal claims. 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: Douglas Laycock <dlayc...@virginia.edu> To: 'Law & Religion issues for Law Academics' <religionlaw@lists.ucla.edu> Sent: Mon, Oct 1, 2012 12:38 pm Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" Oops. Writing too fast. What I meant to say is that neither Lyng, nor Bowen, nor Lee supports a no-burden holding in the ACA cases. Lyng and Bowen do indeed appear irrelevant. But Lee is not irrelevant; it supports a holding of substantial burden. The Court accepted the Amish claim that payment of social security taxes was forbidden by their faith, and concluded that requiring this payment “interferes with their free exercise rights.” But “not all burdens are unconstitutional. That state may justify a limitation on religious liberty . . .” And it went on to find a compelling interest in collecting taxes, including social security taxes. So in Lee, the Court said that payment of funds to the government, for a stated purpose that is religiously objectionable, is a constitutionally cognizable burden on free exercise. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu <mailto:religionlaw-boun...@lists.ucla.edu?> ] On Behalf Of Douglas Laycock Sent: Monday, October 01, 2012 10:55 AM To: 'Law & Religion issues for Law Academics' Subject: FW: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" Lyng and Bowen involved no regulation of religious behavior. Lee expressly found a burden on free exercise (455 U.S. at 257); the case was decided on compelling interest grounds. None of these cases have any relevance to the burden issue in the ACA cases. And by the way, I think that all three were rightly decided. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, October 01, 2012 8:34 AM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" Religious groups and their supporters have been trying to water down "substantial" for years. The Alabama rfra doesn't include "substantial" and neither did the failed North Dakota or Colorado initiatives. One of the reasons the latter failed is overreaching, though it is also attributable to the fact that the Rutherford Institute and others lobbying for rfras have met their match in a number of opposing groups. The court in the ACA case did little more than apply existing law on the interpretation of "substantial." Those arguing the case was wrongly decided on this issue are arguing for a new standard. That is contrary to RFRA's (and RLUIPA's) legislative history, which indicate "substantial burden" was to be interpreted according to existing precedents (as of 1993 and 2000)..... In other words, Lyng, Bowen, and Lee are the governing interpretations for RFRA. Subjective views of burden are not part of the doctrine. It would take the Supreme Court to overturn these decisions to grant a win to the religiously affiliated institutions. 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 _______________________________________________ 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.