The adjective <substantial> must do some work. For one state case so
holding, see Warner v. City of Boca Raton, 807 So. 2d 1023, 1033-1034
(Fla. 2004):
Accordingly, we conclude that the narrow definition of substantial
burden adopted by the Fourth, Ninth, and Eleventh Circuits is most
consistent with the language and intent of the FRFRA. Thus, we hold
that a substantial burden on the free exercise of religion is one that
either compels the religious adherent to engage in conduct that his
religion forbids or forbids him to engage in conduct that his religion
requires. See Mack, 80 F.3d at 1178. We acknowledge that our adoption
of this definition may occasionally place courts in the position of
having to determine whether a particular religious practice is
obligatory or forbidden. However, we conclude that this inquiry is
preferable to one that requires the Court to question the centrality
of a particular religious belief or negates the legislative
requirement that only conduct that is substantially burdened be
protected by strict scrutiny.
By analogy, consider the word <reasonable> in the phrase <reasonable
accommodation> as construed by U.S. Airways v. Barnett, 535 U.S. 391,
400-401 (2002):
These arguments [equating reasonable with effective] do not persuade
us that Barnett's legal interpretation of "reasonable" is correct. For
one thing, in ordinary English the word "reasonable" does not mean
"effective." It is the word "accommodation," not the word
"reasonable," that conveys the need for effectiveness. An ineffective
"modification" or "adjustment" will not accommodate a disabled
individual's limitations. Nor does an ordinary English meaning of the
term "reasonable accommodation" make of it a simple, redundant mirror
image of the term "undue hardship." The statute refers to an "undue
hardship on the operation of the business." 42 U. S. C. §
12112(b)(5)(A). Yet a demand for an effective accommodation could
prove unreasonable because of its impact, not on business operations,
but on fellow employees—say, because it will lead to dismissals,
relocations, or modification of employee benefits to which an
employer, looking at the matter from the perspective of the business
itself, may be relatively indifferent.
Perhaps the Court will defer to the believer's subjective assessment
of what is substantial, but if it does, won't it have equated
substantial with sincere, effectively rewriting RFRA?
Mike
Michael R. Masinter 3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu 954.262.3835 (fax)
Quoting Christopher Lund <ed9...@wayne.edu>:
Sure, but what evidence did they have? That is, what evidence did
they have that any of the differences in phrasing--"burden,"
"substantial burden," or "restriction on religious liberty,"--would
matter in deciding cases?
Again I may be wrong about this and I really would like to be
corrected if I am. But I have seen no evidence that these
differences have practical payoff.
On Dec 2, 2013, at 1:45 PM, Marci Hamilton <hamilto...@aol.com> wrote:
The Texas municipal league and civil rights groups -- especially
those protecting children's and women's and gay rights -- would
disagree w the notion "substantial" is irrelevant. And the TX
legislature had no interest,
or so I am told by those groups on the ground in Texas. I don't
want the listserv to have the impression that the state RFRA
battles are being
fought solely by law professors and religious lobbyists. The
civil rights groups that initially backed RFRA
have caught up to the agendas behind the veil
Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton
On Dec 2, 2013, at 12:28 PM, "Douglas Laycock"
<dlayc...@virginia.edu> wrote:
Apologies to anyone getting this twice; I think it bounced the first time.
What I said is in the second letter (link below) and summarized in
the e-mail to which Marci responded. We supported the bill as
drafted, without ?substantial;? I also suggested that the
committee restore ?substantial? if it were bothered by the
omission. I think most of my co-signers would have agreed with
that suggestion, but I don?t know that, because they were not
asked to sign the second letter. I said it didn?t matter much
because the substantiality of the burden would affect the
inevitable balancing of burden against government interest; Chris
Lund?s recent post better documents that explanation.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: hamilto...@aol.com [mailto:hamilto...@aol.com]
Sent: Monday, December 02, 2013 10:18 AM
To: dlayc...@virginia.edu; religionlaw@lists.ucla.edu
Subject: Re: Letter of 16 law professors in support of removing
"substantial" as modifier of "burden" in state RFRAs
Thanks, Doug. The letter in support of the new TRFRA amendment
bill, which would have omitted "substantial" as a modifier, does
not mention the removal of
"substantial," but is in support of the bill.
If there is anyone who signed it who opposes removal of
"substantial," please let me know. Otherwise, I will assume all
signatories have endorsed the removal of "substantial" as a
modifier for "burden." No need to respond if you support the bill
as worded.
Thanks all
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
http://sol-reform.com
-----Original Message-----
From: Douglas Laycock <dlayc...@virginia.edu>
To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu>; hamilton02 <hamilto...@aol.com>
Sent: Sun, Dec 1, 2013 11:37 am
Subject: Re: Letter of 16 law professors in support of removing
"substantial" as modifier of "burden" in state RFRAs
The presence or absence of the word "substantial" was briefly
addressed in a
follow-up letter here:
http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senate2corrected.pdf
I defended the word's omission. I also suggested that the
Committee add it if
they thought it mattered.
My apologies for the delay. There was an initial miscommunication
with our tech
people, and by the time they got this posted, I was caught up in
Town of Greece
and completely forgot to go back to this.
On Sun, 1 Dec 2013 11:00:33 -0500 (EST)
hamilto...@aol.com wrote:
>Thanks Marty!
>
>
>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
>http://sol-reform.com
>
>
>
>
>
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