Chris: The question is not how "central" the religious exercise is to the plaintiff's system of religion -- an assessment that I would never encourage civic officials to assess and that the text of the statute in any event precludes -- but how *important *it is to the plaintiff, which can be viewed as a component of how "substantial" a burden the law places on the religious exercise. To take one obvious example: Conduct that is compelled by religious doctrine and conduct that is only modestly encouraged by religious tradition (throwing rice at the wedding) might both be part of "religious exercise"; but obviously a legal restriction on the former will impose a more substantial burden on that exercise than a restriction on the latter -- it'll "bite" more.
These cases raise a different variation on that question . . . . On Wed, Dec 4, 2013 at 1:37 PM, Christopher Lund <l...@wayne.edu> wrote: > I’m sorry to be late in returning to this thread. I appreciate Professor > Masinter’s example, his posts and the others. > > > > It seems like Marty and Doug have helpfully given us a couple of ways of > going forward. > > > > (1) Centrality could be a threshold requirement. > > > > (2) Centrality could be integrated into determinations of burden, > compelling interest, least restrictive means, etc. And with much less > experience, I share Doug’s sense that this happens inevitably, without any > need for centrality as a formal requirement. Judges are most sympathetic > to practices of deep religious significance, and this is not a failing on > their part. And when we move from courts to legislatures, legislatures > openly and un-self-consciously give more protection to central practices. > > > > It seems to me that the whole for-profit issue arises because of problems > with both of these approaches. We don’t like centrality as a threshold > requirement, because it is ugly for courts to administer and it means > absolutely no protection for practices a court deems non-central, no matter > how weak the governmental interest. And we don’t like centrality > integrated into other parts of the test, because it doesn’t really fit. > > > > For-profit status makes sense as a kind of proxy for centrality. I’m not > persuaded there’s something mysterious about for-profits that makes them > categorically unable to practice religion. (And if you look at Tyndale > House, for example, I think that point becomes kind of obvious.) But I am > persuaded that most for-profits don’t exercise religion, and that it’s > generally not as important to their mission. > > > > One final wrinkle. Doug and Marty know this, but we have to keep in mind > that this centrality argument—Marty below says that “the government and its > amici will no doubt argue, by contrast, that the court must also assess the > degree of importance of the religious exercise to the plaintiff”—however > sensible it is, runs into the text of RFRA. *See *42 USC § > 2000cc–5(7)(A) (“The term ‘religious exercise’ includes any exercise of > religion, whether or not compelled by, or central to, a system of religious > belief.”) > > > > Best, > > Chris > > ___________________________ > > Christopher C. Lund > > Associate Professor of Law > > Wayne State University Law School > > 471 West Palmer St. > > Detroit, MI 48202 > > l...@wayne.edu > > (313) 577-4046 (phone) > > (313) 577-9016 (fax) > > Website—http://law.wayne.edu/profile/christopher.lund/ > > Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Tuesday, December 03, 2013 8:45 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Does "substantial" matter? > > > > Doug may well be right that for most lower courts (but not all -- see > Michael Masinter's post), whether the term "burden" is modified by > "substantial" will not matter, because such courts inevitably end up > "balancing" the degree (or nature) of the burden on religious exercise -- > indeed, the degree of religious significance -- against the strength of the > government's interest in denying an exemption. > > From where we stand today, however, that's a somewhat odd argument to > make, for two reasons. The first is that the terms of RFRA (and most state > analogues) don't ask courts to do any such balancing: Instead, the court > is asked in the first instance to assess whether there is a substantial > burden -- on the face of it, what appears to be a binary, yes or no > question -- and then (in theory) is not supposed to further assess the > importance/substantiality/centrality/degree/etc. of that burden when moving > on to the second step, which merely asks whether the government interest is > compelling and can otherwise be advanced, even with a religious exemption. > > The second reason that we can't so easily dismiss "substantial" is, of > course, that the Supreme Court has just granted cert. in a landmark case > that will likely turn on precisely what the word "substantial" means. (At > the very least, that question will get a thorough workout in the briefing > and argument.) > > Many of those who are supporting Hobby Lobby will presumably argue that > the adjective "substantial" refers only to the degree of coercion resulting > from the government action (criminal sanctions being most coercive and thus > creating the most substantial burden; denial of unemployment benefits also > "substantial" (cf. Sherbert); denial of highly discretionary, rarely > awarded benefits much less substantial, etc.). > > The government and its amici will no doubt argue, by contrast, that the > court must also assess the degree of importance of the religious exercise > to the plaintiff. > > My understanding from Doug's previous writings is that he agrees that some > such assessment of "religious significance" (a "continuous" variable in > Doug's terms -- not an on/off switch) is necessary, or at least inevitable > (as his post here suggests). For example, he wrote this in a 2009 piece in > Rutgers J. L & Rel.: > > The text of the Constitution applies to all forms of religious practice, > central or peripheral. Still, *the argument against oppression is > strongest with respect to the most important religious practices, and > weaker with respect to marginal practices that believers might be willing > to give up.* But the importance of religious practices varies from person > to person, and is difficult for courts to assess. The Court is right that > it would be a mistake to hold that practices central to a religion are > constitutionally protected and that practices below some threshold of > centrality are not constitutionally protected. A far better rule is that > all exercise of religion is constitutionally protected, but that *less > weighty government interests can justify burdens on less weighty religious > practices*. A threshold requirement of centrality would be an > all-or-nothing rule; it would treat a continuous variable--religious > significance--as though it were a dichotomous variable, and it would > thereby greatly magnify the consequences of the inevitable errors in > assessing religious significance. Such a threshold requirement would wholly > deny protection, instead of according somewhat less protection, when > religious significance is somewhat underestimated. But *the impossibility > of fairly administering a threshold requirement of centrality does not mean > that the courts should wholly ignore the importance of the religious > practice when they are asked to decide a claim to exemption*. The > compelling interest test is best understood as a balancing test with the > thumb on the scale in favor of protecting constitutional rights. The best > way to formulate the question is whether the government interest > compellingly outweighs the religious interest. *The compelling interest > test is not often formulated that way, but I think that it must operate > that way in practice, and sometimes in the course of applying the test, the > Court seems to say as much*. To borrow and correct Justice Scalia's > example, it is easier for the government to justify a ban on throwing rice > at weddings than to justify a ban on getting married in church. > > > > On Mon, 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 > > > > > > _______________________________________________ > 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. >
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