My apologies for the delay responding to Alan’s point. Alan
raises an excellent argument, but my tentative thinking is that the force of
the assault/theft hypotheticals stems precisely from the fact that they involve
injury to long-recognized common-law private rights. I’m not sure even that
should make such hypotheticals into violations of the Establishment Clause, but
if it does, I think it’s the longstanding tradition of legally protecting the
rights -- even if the police don’t always enforce the law -- that is doing the
work.
Indeed, I expect that the same would apply if the law allowed
people to commandeer third parties’ property without compensation, and outside
the traditional limitations on property rights. (I recall Alan’s excellent
Property Rights Genie article, which suggested that such laws may indeed be
unconstitutional deprivations of property.) Laws allowing people to assault
third parties outside the traditional situations (such as self-defense) would,
I think, be shocking regardless of whether the assaults were religiously
motivated; it’s hard to point to specific cases considering this, though, since
such laws are fortunately so rare. (The closest analogy I could think was
spousal rape laws, which were in some cases struck down even despite their
history, though that is clouded by the Equal Protection Clause sex
discrimination issue.)
In any case, I just thought I owed Alan an answer to his post.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Wednesday, November 27, 2013 11:38 AM
To: Law & Religion issues for Law Academics
Subject: RE: Contraception Mandate
I have a lot of trouble with the argument that religious accommodations that
effectively deny third parties government-mandated benefits to which they are
otherwise entitled are not subject to Establishment Clause review. It is true
that the government doesn’t have to protect anyone against employment
discrimination and can decide how far it wants to extend such protection. It is
also true that the government isn’t required to protect all people all the time
against crimes like assault and battery (See Deshaney) or torts like conversion
(See Flagg Brothers). But surely an exemption that allows religious individuals
to assault third parties or commandeer their property violates the
Establishment Clause.
I agree that the accommodation upheld in Amos burdened the employee who lost
his job. I think the Court’s cases recognizing some Establishment Clause limit
on accommodations involve some implied balancing. Implied balancing is
necessary to determine whether an accommodation goes too far in burdening third
parties and whether the accommodation does not impermissibly favor certain
faiths over others. That’s one of the reasons I think Smith is unpersuasive
when it rejects free exercise claims against neutral laws of general
applicability in order to avoid subjective judicial balancing. When the job of
granting accommodations is assigned to the legislature, court’s will have to
engage in the same kind of balancing that they avoid in Free Exercise cases
under Smith when they adjudicate Establishment Clause challenges to the
accommodation because it allegedly impermissibly burdens third parties or
favors certain religions over others.
Alan
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, November 26, 2013 9:43 PM
To: Law & Religion issues for Law Academics
Subject: RE: Contraception Mandate
I do indeed think so. The government doesn’t have to extend a
government-mandated benefit to everyone; Title VII protections, for instance,
aren’t extended to employees of small businesses, and are otherwise limited in
various ways. Indeed, a law can’t discriminate based on a beneficiary’s
religion in extending such a benefit (except perhaps when the benefit is itself
a religious accommodation). But I don’t think that there should be an
Establishment Clause problem with a law saying that, for instance, those
tenants who want to rent from religious objector landlords don’t get the
protections of marital status discrimination law, those employees who work for
religious vegetarian landlords don’t get the protections of the meaty lunch
program, or those employees who work for employers who object to paying for
contraceptives or abortifacents don’t get the protections of the relevant
health care insurance program.
As to Cutter, the only way I can see of reconciling it with
Amos is by not reading Thornton too broadly. The accommodation in Amos did
not, after all, at all “take adequate account of the burdens a requested
accommodation may impose on nonbeneficiaries,” if “burdens” is viewed as
included denial of a government-mandated benefit. The employee in Amos was
seriously burdened indeed, by loss of his job, and not just of some benefit
under the health insurance coverage. That the employer was a nonprofit, after
all, did not eliminate or even diminish the burden on the employees; employees
of nonprofits are just as burdened by loss of a job as employees of
for-profits. And the law in Amos did not call on courts to “take adequate
account of the burden.”
Eugene
Alan Brownstein writes:
Eugene, are you arguing that an exemption that effectively denies a class of
individuals a government-mandated benefit that there are otherwise entitled to
receive can never violate the Establishment Clause under Amos, Thornton, and
Cutter? I think that requires courts to engage in an unhelpful inquiry trying
to distinguish between benefits and burdens (does an exemption from laws
requiring that employers provide employees a safe working environment impose a
burden on workers or deny them a government-mandated benefit).
I think Cutter clearly suggests that exemptions would be unacceptable, not
because they give the force of law to a believer’s action, but because of “the
burdens a requested accommodation may impose on non-beneficiaries” and because
an accommodation would “impose unjustified burdens on other institutionalized
persons, or jeopardize the effective functioning of an institution.”
I agree that the mere fact that some burden is imposed or benefit denied does
not demonstrate that an exemption violates the Establishment Clause. But
accommodations that either impose direct burdens or interfere with mandated
benefits can violate the Establishment Clause if they go too far.
Alan Brownstein
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