I'm happy to let others answer the question of why Eugene's FRA would be crazy (and profoundly contrary to the statute Congress enacted in 1993). If Eugene is not persuaded, so be it.
On Tue, Dec 3, 2013 at 10:57 AM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > Why is it so crazy? If, for instance, religious objectors > to abortion get exemptions from having to participate in abortion, > conscientious secular philosophical objectors would get such exemptions, > too. That seems fair, and is indeed the rule both under various > abortion-specific conscience clauses and, as I noted, as to Title VII -- > which is narrower than RFRA in some ways, but broader in another very > important way (since it applies to private employers). Nor has the > interpretation of Title VII to which I point been seen by courts as > removing the “religious” from “religious accommodation”; it just follows > cases such as Welsh in treating deeply held conscientious philosophical > beliefs similar to religious beliefs, something that would often have to be > done in any event given the large variety of religious views, including > nontheistic ones. > > > > As to “crackpot philosoph[ies],” “crackpot” religious > objections -- including idiosyncratic ones -- are already covered under > RFRA. Moreover, since the great majority of Americans consists of > religious believers, most philosophical objections can be tied by at least > some of the objectors to their religious beliefs, especially since all that > is required is sincerity of belief and not the sharing of the belief by a > larger group. Yet RFRA has not been terribly burdensome for the > government, as best I can tell. Why would allowing similarly crackpot (or > noncrackpot) secular philosophical objections to be covered suddenly cause > much bigger problems? > > > > Eugene > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu > *Sent:* Tuesday, December 03, 2013 7:45 AM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: RFRA, the Establishment Clause, and saving constructions > > > > The reason not to construe RFRA to apply to all secular philosophical > objectors is that it's just plain crazy as a matter of policy. RFRA (which > we would have to rename FRA after such a construction) applies to all of > federal law. So this construction would give the holder of every crackpot > philosophy about the limited role of government the legal leverage of > requiring strict scrutiny as to why he or she should not be exempted from > the reach of federal law. (Title VII is only about the employment > relation, and the duty of accommodation is limited to de minimis burdens on > employers. RFRA, or your FRA, would extend to everything.) So if > construction to avoid constitutional doubt is what we are looking for, the > only sensible move is to keep the "R" -- that is what Congress was doing in > 1993 -- and to construe RFRA so as to avoid significant third party harms > (in this case, to employees). > > > > On Mon, Dec 2, 2013 at 11:43 PM, Volokh, Eugene <vol...@law.ucla.edu> > wrote: > > I appreciate Jim’s argument, and also the arguments that > the problem with the exemption isn’t discrimination in favor of religion, > but rather the burden on third parties, regardless of whether the exemption > is only for the religious. (I hope to respond to those arguments soon.) > > > > But as to the point below -- and assuming that a RFRA > employer mandate exemption that covers secular conscientious objectors is > as constitutional as the conscientious objector draft exemption -- wouldn’t > the canon of interpreting statutes to avoid unconstitutionality (even > setting aside constitutional “doubt”) be relevant here? It’s true that > RFRA generally endorses *Sherbert *and *Yoder* and other federal cases, > and in the absence of an Establishment Clause objection it might well be > interpreted to apply only to religious objectors. But if indeed such an > interpretation would lead to a finding that RFRA is unconstitutional, > wouldn’t that cut pretty strongly in favor of avoiding that interpretation, > and including secular philosophical objectors? The language isn’t as > clearly hostile to such an interpretation as the language in the draft law > was in *Welsh*. And, as I noted, the other broad federal religious > accommodation regime -- the Title VII religious accommodation provision -- > has largely been read by lower courts as covering secular philosophical > objectors as well as religious ones. Why wouldn’t that, coupled with the > avoidance of unconstitutionality canon, counsel in favor of a > constitutionally permissible interpretation rather than a constitutionally > impermissible one? > > > > Eugene > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske > *Sent:* Monday, December 02, 2013 8:11 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: The Establishment Clause, burden on others, the employer > mandate, and the draft > > > > Eugene -- One question about this passage from your message: > > "I take it that RFRA could likewise be interpreted to apply to > philosophical conscientious beliefs." > > Could such an interpretation of RFRA be squared with its stated purpose of > restoring the protection of free exercise as set forth in Yoder, which said > that philosophic beliefs were not protected under the Free Exercise Clause? > > "[I]if the Amish asserted their claims because of their subjective > evaluation and rejection of the contemporary secular values accepted by the > majority, much as Thoreau rejected the social values of his time and > isolated himself at Walden Pond, their claims would not rest on a religious > basis. Thoreau's choice was philosophical and personal rather than > religious, and such belief does not rise to the demands of the Religion > Clauses." - Yoder at 216. > > > Of course, as you note, the Court had to twist the language of the > conscientious objector exemption to apply it to philosophic conscientious > beliefs, but it's hard to imagine today's Court engaging in the same type > of (non) textual analysis. > > > > - Jim > > > > > _______________________________________________ > 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. > > > > > > -- > 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 > > _______________________________________________ > 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. > -- 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
_______________________________________________ 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.
