Chris: You and Marc raise absolutely valid points about doctrine during the Sherbert/Yoder era: The argument I'm suggesting (I'm not advocating it yet -- merely thinking it through) is in at least some tension with the sheet-metal/turrets portion of *Thomas*, and perhaps the burden discussion in *Lee* (I can't recall offhand what the Amish theory was about why the Social Security taxes violated their religion, but I assume it was something akin to the "cooperation with evil" theory being floated here; although as Chip suggests, it also involved some aspect of double-payment).
So, simply in terms of what the right answer is or ought to be under RFRA, the government will obviously have to contend with those cases, either by suggesting (as someone here did) that perhaps RFRA did not incorporate their burden analysis wholesale (I'm dubious, but haven't thought it through), or that this case is distinguishable. But I'm not simply asking what the "right" answer is under RFRA. I'm trying to address at least three other questions raised by these claims: 1. Was Burger right on the turrets/sheet-metal point? Should the courts actually treat all religious *claims* of substantial burden uncritically, without even asking whether and to what extent the claimant's own conduct calls into question whether the burden is in fact substantial from the claimant's own religious perspective? If the courts do not differentiate at all between the plausibility and strength of such claims, and treat all alleged substantial burdens alike, is that a good thing for religious liberty? After all, it means that if the government were to voluntarily give exemptions, or be compelled by the FEC/RFRA to do so, it would have to cover a much, much wider class of claimants, with an accordingly much greater cost on the government interest side of the ledge . . . which as we all know means that many fewer exemptions will be afforded, in which case the claimant with the "strong" objection is harmed by being lumped in with the claimants with idiosyncratic or more attenuated objections. (As we all know, the courts have often avoided this problem by rejecting sincerity claims -- something that rightly troubles many of us.) 2. Regardless of what a court should do under RFRA, should a legislature or administrative agency be sympathetic to such claims, and voluntarily accommodate all such claims merely upon a claimant's say so of religious burden, knowing that to do so would expand the class of exempted persons dramatically? (Cf. The decision of Congress/the Court to grant conscientious exemption status only to those persons who have objections to *all* wars, and not to those who object to participating in unjust wars.) 3. Perhaps most importantly, but of course most sensitively, should Catholic institutions be asserting such claims of impermissible cooperation with evil when such claims appear -- not only to outside observers such as I, but to virtually every serious Catholic thinker I've encountered -- to be deeply inconsistent with the institutions' own conduct in analogous cases and with common understandings of the moral doctrine? At the very least, isn't there some value in asking such institutions to articulate why this particular use of funds is immoral and other, seemingly analogous uses are not, if only to encourage the institution to be more critical and candid about how the HHS Rule actually affects Catholic institutions. (Please note that I am *not* here suggesting that the Rule has no effect on such institutions, or that they do not sincerely find it odious --to the contrary. I am merely pressing upon the common and powerful claim that "it puts us to the untenable choice of complying with the law or violating a religious injunction.") On Wed, Oct 3, 2012 at 10:35 AM, Christopher Lund <l...@wayne.edu> wrote: > Can I ask a quick question for people like Marci, Marty, and others who > doubt the existence of a “substantial burden”?**** > > ** ** > > What about *United States v. Lee*? The Amish object to paying Social > Security taxes. The government makes them. The decision to use the taxes > for Social Security is the government’s, not the Amish. The Amish say, > “Well, we object to giving you money to pay for that.” The Court says > there’s a burden. Isn’t this case just *Lee *again? What am I missing? > (If I’ve missed earlier posts discussing this, I’m sorry.)**** > > ** ** > > Best, Chris**** > > ** ** > > > _______________________________________________ > 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. >
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