In these cases about landlord or employer liability or criminal complicity, the landlord or employer is denying complicity, and the law imposes objective standards to adjudicate the question. It would never be the case that the law would allow the landlord or employer to escape liability by saying "I didn't feel responsible for the conduct." So don't we need similarly objective standards to test a RFRA claimant's assertion of proximity or responsibility? And won't any such standards involve courts second-guessing the religious beliefs of others? The RFRA context requires either "I sincerely say so" (which many on the list have argued for, but that has nothing to do with the objective complicity rules), or judicial evaluation (under objective, legal standards, not Thomas-like, subjective religious ones) of proximity to something the religious claimant views as evil that others view as necessary and good.
On a different but related point, because of the Establishment Clause, the effects of any statutory exemptions on third parties are an explicit part of the legal equation (Caldor; Cutter v. Wilkinson re: the RLUIPA calculus), though they come in on the government interest side of the story (avoid harm to others, perhaps avoid Establishment Clause violations caused by that harm), and not the burden story. So the employees' interest in obtaining the services cannot be made to disappear from the ultimate RFRA question. On Thu, Oct 4, 2012 at 12:54 PM, Douglas Laycock <dlayc...@virginia.edu>wrote: > Eugene's analogies in the insurance context are hypothetical. Similar > analogies in the landlord-tenant context are very real. > > If a tenant uses leased premises for prostitution, the landlord is > responsible. There are California cases on this, and I don't think they are > in any way unusual. But when landlords felt responsible for other kinds of > sexual conduct on their leased premises, their sense of responsibility was > dismissed as unreasonable, in discussions much like the one we have been > having, and California said that requiring landlords to rent to unmarried > couples did not burden their religious exercise. > -- 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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