Chris, I respectfully disagree with the ipso facto view that a plaintiff is
substantially burdened when ever compelled to do something their religion
forbids. Burdened yes, substantially burdened maybe. This may sound cold, but
"it's business." I would suggest to people who oppose the mandate to "move on"
but I know that isn't going to happen.
I believe that current mandate found the correct "accommodation" in balancing
the interests of employers and employees. Obviously, some disagree.
Not said in this discussion so far is that "in the name of religion" much ill is
done (including war and discrimination). In my view, broadening the
accommodation would add to the list. (I would see granting the accommodation to
O'Brien like granting a religious exemption to parents from seeking medical care
for their sick children.)
Bob Ritter
On October 2, 2012 at 1:05 PM Christopher Lund <l...@wayne.edu> wrote:
>
> As for Chip and Bob Ritter’s point about the burden being “substantial,” I
> think that anytime a plaintiff is forced to do something their religion
> forbids, that is not just a burden but a substantial burden. I think the
> Court made this clear by implication in Hernandez. See Hernandez v.
> Commissioner, 490 U.S. 680, 699 (1989) (“We do, however, have doubts whether
> the alleged burden imposed by the deduction disallowance on the
> Scientologists' practices is a substantial one. Neither the payment nor the
> receipt of taxes is forbidden by the Scientology faith generally, and
> Scientology does not proscribe the payment of taxes in connection with
> auditing or training sessions specifically.”). This is not to say that the
> word “substantial” makes no difference. It may be important in other kinds of
> cases like, say, Braunfeld—cases where the government makes the religious
> practice more onerous but does not forbid it. (For another example, we could
> go back to my discussion with Marci about a prison that doesn’t force a Jew to
> eat non-Kosher food, but puts him on a Kosher diet that is significantly worse
> than that of other inmates.)
>
>
>
> I think Chip has rightly diagnosed the deep divide between the two groups. I
> think there are merits and demerits to both sides. But I think the Court has
> chosen the first position. Subject to the sincerity inquiry, churches do
> indeed get to “self-declare” what their religious views are. I know that
> sounds weird, but wouldn’t it be weirder if they didn’t? Certainly this broad
> conception of “burden” will lead to outcomes like Lee: As the scope of the
> religious objection grows wider and wider, the government’s claim of a
> compelling interest becomes more and more persuasive. Maybe the Court’s
> adoption of a broad sense of “burden” in cases like Lee helped lead to
> Employment Division v. Smith. Gosh knows, it was part of Boerne. See City of
> Boerne v. Flores, 521 U.S. 507, 535 (1997) (“It is a reality of the modern
> regulatory state that numerous state laws, such as the zoning regulations at
> issue here, impose a substantial burden on a large class of individuals.”)
> But it seems to me that this is the path we’re on.
>
>
>
> Best,
>
> Chris
>
>
>
> 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 <mailto: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>
> [mailto: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
> <tel:202-806-8017>
> Associate Director, Institute for Intellectual Property and Social Justice
> http://iipsj.org <http://iipsj.org>
> Howard University School of Law fax: 202-806-8567
> <tel:202-806-8567>
> http://iipsj.com/SDJ/ <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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> _______________________________________________
> To post, send message to Religionlaw@lists.ucla.edu
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> To subscribe, unsubscribe, change options, or get password, see
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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
> <http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg>
>
_______________________________________________
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