Derek-- You don't mention, though, that the legislative history of RLUIPA is
explicit that "substantial burden" means what it meant in the free exercise
doctrine.
You can't use the definition of "religious exercise" (which I view as
reflecting Smith's dictum on the same) to alter the definition of "substantial."
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: Gaubatz, Derek <dgaub...@imb.org>
To: Religionlaw <Religionlaw@lists.ucla.edu>
Sent: Tue, Oct 2, 2012 12:42 pm
Subject: RE: Court Rejects Religious Liberty Challenges To ACA
Mandate--interpreting "substantial burden"
Dear Chip,
Thomas is not mentioned in the findings of RFRA, but it’s holding is certainly
incorporated into the definition of religious exercise in RFRA (and RLUIPA).
In fact, it seems to me that much of the discussion on this list and in the
O’Brien case of whether there is a substantial burden in these
contraception/abortifacient cases has failed to focus in on RFRA’s definition
of religious exercise. Obviously, it is an important threshold issue to
identify the precise religious exercise at issue before determining whether
there is a substantial burden on that religious exercise.
RFRA defines religious exercise (consistent with Thomas) as “any
exercise of religion, whether or not compelled by, or central to, a system of
religious belief.” 42 U.S.C. §2000bb-2(4); 42 U.S.C. §2000cc-5
There are three noteworthy things about this definition. First, like the text
of the Free Exercise Clause itself, which does not limit the range or types of
religious exercise eligible for protection, the Act's definition makes clear
that “any” discrete instance of religious exercise is covered by the Act.
Second, not only does RFRA’s definition of “religious exercise” provide that
“any” religious exercise is protected, it also makes explicit that this
protection is not limited to practices that are compelled by the individual's
religion. Thus, religious exercise that some might claim is discretionary on
the part of the believer--e.g., a Catholic's desire to pray the rosary, a
Muslim's desire to utilize prayer oils during daily prayers, or a Jewish
believer's decision to wear a yarmulke--is also protected and may not be
substantially burdened. This aversion to adopting a requirement that
religious exercise be mandated by a faith in order to be protected flows
directly from the Supreme Court's holding in Thomas that “[c]ourts are not
arbiters of scriptural interpretation.” To require a court to inquire into
whether a particular religious practice is compelled by the believer's faith is
to force a court into a role “not within the judicial function and judicial
competence,” because it necessitates a judgment as to what a religion requires
of its believers. If compulsion were a prerequisite, courts would soon be in
the theological thicket as the state would seek to defeat a believer's claim of
substantial burden by introducing testimony of another member of the believer's
faith who opines that the particular practice is not mandated.
Finally, RFRA’s definition of religious exercise also makes explicit that
consideration of whether the religious exercise at issue in the case is
“central” (or fundamental) to a particular religion is irrelevant. Accordingly,
particular acts of religious exercise are protected from being substantially
burdened under RFRA, regardless of whether a judge (or government official or
law professor or anybody else) feels they are not of sufficient importance to a
religion to be worthy of protection.
With RFRA’s definition of “religious exercise” in mind, what is the precise
religious exercise involved in O’Brien and in other cases challenging the
contraception/abortifacient mandate? As I understand it, the religious
exercise at issue is that the religious adherent (i.e., the employers in these
cases) believes that it morally wrong to purchase a health care plan (in the
case of a non-self insured employer) that includes
contraceptives/abortifacients or to be forced to pay for
contraceptives/abortifacients (in the case of an employer with a self-insured
plan) As I understand it, there is no question in O’Brien (or any of the
other cases) about the sincerity of this belief or that it is religiously
based.
Once the focus is placed on the actual religious belief that is being exercised
here, the question is then whether the mandate substantially burdens this
religious exercise. As I understand the mandate’s operation, it says either
you comply with the mandate and pay for a plan (or provide coverage in the case
of a self-insured plan) that includes contraceptives/abortifacients or pay a
penalty. In other words, if the religious adherents here exercise their
beliefs, they pay a penalty. I agree that the exact contours of what amounts
to a “substantial” burden is in doubt, but the Supreme Court has already spoken
in Yoder in ruling that imposing a fine on one who exercises sincere religious
beliefs is a substantial burden. (If memory serves, the penalty for violating
the law in Yoder was actually only $5).
The judge in O’Brien failed to focus on the particular religious belief at
issue. Instead, she did the classic side step that many courts are tempted to
do in religious exercise cases and concluded that there was no burden here
because the plaintiff was free to exercise his religion in other ways, opining
that “Frank O’Brien is not prevented from keeping the Sabbath, from providing a
religious upbringing for his children, or from participating in a religious
ritual such as communion. Instead, plaintiffs remain free to exercise their
religion, by not using contraceptives and by discouraging employees from using
contraceptives.” Of course it’s great that the government hasn’t reached so far
as to prevent him from doing these other things, but that doesn’t address
whether his particular religious exercise in this case is substantially
burdened when he is fined for exercising it. The Amish adherents in Yoder
were free to exercise lots of other parts of their religion, but it was a
substantial burden when the government fined them for refusing to take the
affirmative step of sending their children to school after the 8th grade. So
too, it seems to me to be a natural application of Yoder to say it is a
substantial burden here for fining these religious adherents for refusing to
take the affirmative step of purchasing a plan that violates their religious
beliefs.
One other note: the language in RFRA’s definition about religious exercise not
being compelled by or central to a system of religious belief was added to RFRA
by RLUIPA in 2000 because prior to that courts frequently short circuited the
analysis of RFRA claims by concluding that the particular religious exercise
involved in a case was not central to or mandated by the religious claimant’s
beliefs. There is no doubt that this definition of religious exercise is
broad and will encompass lots of what others may think are idiosyncratic
beliefs or beliefs that seem to them to be remote. And undoubtedly this means
that more cases will be subjected to the strict scrutiny analysis, but RFRA and
RLUIPA were written with the intent of giving expanstive protection for
religious exercise.
Blessings,
Derek
Derek L. Gaubatz
IMB General Counsel
(804) 219-1575 (o)
Our vision is a multitude from every language, people, tribe and nation knowing
and worshipping our Lord Jesus Christ.
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Tuesday, October 02, 2012 11:10 AM
To: Law & Religion issues for Law Academics
Subject: Re: Court Rejects Religious Liberty Challenges To ACA
Mandate--interpreting "substantial burden"
The formal "findings" in RFRA reference Sherbert and Yoder, but not Thomas.
Significant?
Should Thomas even apply to artificial persons, like holding companies,
corporations, and religious non-profits? Shouldn't they be required to
articulate with clarity and precision just how their religious exercise is
burdened?
I have not yet seen a reply to Bob Ritter's very good question about what work
is being done by the word "substantial" in RFRA. It has to mean something.
Does it refer to material burdens (e.g., one must pay a fine of $X if one
insists on compliance with one's own religious conscience)? Or does it refer
to the religious substantiality of the burden?
The list appears to divide into two groups on this burden question. One one
side, the claimant gets to self-declare, and that triggers the strict scrutiny
of RFRA. That seems to wildly over-enforce religious freedom. Consider the
religiously idiosyncratic and libertarian employer who objects to FLSA, OSHA,
Title VII, etc.
On the other side, the government lawyers and courts get to second-guess and
decide what someone's religion really requires, and what kind of burden on that
is presumptively too great to force the claimant to endure. That seems
unconstitutional (see Hosanna-Tabor and other decisions on Establishment Clause
limits on the state's resolving internal religious questions).
Chip
On Tue, Oct 2, 2012 at 10:46 AM, Scarberry, Mark
<mark.scarbe...@pepperdine.edu> wrote:
Ordinarily we should accept a person's view of whether the actions required by
the state relate closely enough to something prohibited by the person's
religion so as to make the person complicit. "Thomas drew a line, and it is not
for us to say that the line he drew was an unreasonable one." Thomas v. Review
Board. Remember that the kind of analysis applied by the Court in Sherbert and
Thomas is the kind Congress wanted to bring back under RFRA.
Here is a longer excerpt from Thomas. I think it is fair to say that the Court
held that what counts is the religious person's view of whether actions make
them complicit with evil:
"When asked at the hearing to explain what kind of work his religious
convictions would permit, Thomas said that he would have no difficulty doing
the type of work that he had done at the roll foundry. He testified that he
could, in good conscience, engage indirectly in the production of materials
that might be used ultimately to fabricate arms -- for example, as an employee
of a raw material supplier or of a roll foundry." (Footnote omitted.]
...
"In reaching its conclusion, the Indiana court seems to have placed
considerable reliance on the facts that Thomas was 'struggling' with his
beliefs, and that he was not able to 'articulate' his belief precisely. It
noted, for example, that Thomas admitted before the referee that he would not
object to 'working for United States Steel or Inland Steel . . . produc[ing]
the raw product necessary for the production of any kind of tank . . . [because
I] would not be a direct party to whoever they shipped it to [and] would not be
. . . chargeable in . . . conscience. . . .' 271 Ind. at ___, 391 N.E.2d at
1131. The court found this position inconsistent with Thomas' stated opposition
to participation in the production of armaments. But Thomas' statements reveal
no more than that he found work in the roll foundry sufficiently insulated from
producing weapons of war. We see, therefore, that Thomas drew a line, and it is
not for us to say that the line he drew was an unreasonable on!
e. Courts should not undertake to dissect religious beliefs because the
believer admits that he is 'struggling' with his position or because his
beliefs are not articulated with the clarity and precision that a more
sophisticated person might employ."
...
"The narrow function of a reviewing court in this context is to determine
whether there was an appropriate finding that petitioner terminated his work
because of an honest conviction that such work was forbidden by his religion."
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
-----Original Message-----
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Tuesday, October 02, 2012 5:43 AM
To: Law & Religion issues for Law Academics
Subject: Re: Court Rejects Religious Liberty Challenges To ACA
Mandate--interpreting "substantial burden"
Rick,
I understand the first part -- on which much of the disagreement has centered.
(One can make the distinctions some are advocating, but should one is the hard
part (for some). Drawing the line elsewhere makes more sense to others of us.)
But I'm not sure how the second part works. If a court decides (or society
decides) that giving insurance benefits mandated by the government is not
"cooperation with evil," then doesn't the substantial burden evaporate?
Because isn't that what the erstwhile substantial burden is? So isn't this
properly to be decided on the predicate which the adherent has the burden of
proving and not on the strict scrutiny which places an insurmountable burden in
many instances on the government?
Steve
On Oct 2, 2012, at 8:17 AM, Rick Garnett wrote:
> But, as others have pointed out, the compelled-insurance-coverage context is
> (the district court's ruling notwithstanding) at least distinguishable and,
> it seems to me, rises to the level of a "substantial burden!
> " -- even if, ultimately, one concludes that complying with the mandate does
> not amount to culpable "cooperation with evil" and even if, ultimately, one
> concludes that it is a justifiable and unavoidable (given the "compelling
> interest", etc.) one.
--
Prof. Steven D. Jamar vox: 202-806-8017
Associate Director, Institute for Intellectual Property and Social Justice
http://iipsj.org
Howard University School of Law fax: 202-806-8567
http://iipsj.com/SDJ/
"Enjoy the little things, for one day you may look back and realize they were
the big things."
Robert Brault
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--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
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