Every religious exemption will have a boundary. And it will have somebody
just outside that boundary who is not all that much different from the last
person just inside that boundary. The body creating the exemption may try to
draw the boundary narrowly, as in the original HHS proposals about the
contraception mandate, exempting pretty much only the church itself. Or they
may try to draw it broadly and inclusively, as in the Title VII exemption
for any religious organization. It's a boundary either way, and with the
Title VII boundary, we get cases like the King Kamehameha schools, which
hired only Protestant teachers under the terms of its endowment, but which
the Ninth Circuit said wasn't really religious enough to qualify any more.
So judgments about the importance of religious practices are inevitable,
however much the Court would like to avoid them. The Court is certainly
right that judges should not make threshold judgments about centrality,
defining some folks as exempt and others as having no claim because of a
yes-no judgment about centrality. Centrality is a continuum, not a
dichotomous variable. Specific legislative exemptions are stuck drawing
yes-no lines for lack of any good alternative. And if it's line reasonably
distinguishes more and less intensely religious contexts, without
discriminating between faiths, it does not imply a value judgment about
religion and should not trigger strict scrutiny.
In applying the compelling interest test in any sensible fashion, the courts
inevitably balance the government interest against the religious interest,
and the importance of the religious practice inevitably matters. To borrow
and reverse Scalia's example in Smith, courts would not protect the practice
of throwing rice at weddings to the same extent that they would protect the
practice of getting married in church. Sometimes the Court describes the
compelling interest test in terms of balancing, and Congress described it
that way in the debates on RFRA. The comments about not judging centrality
should not be read to negate all this. And if they are so read, they are
simply mistaken.
Signing off for a big block of teaching.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of David Cruz
Sent: Wednesday, February 25, 2015 10:51 AM
To: Law & Religion issues for Law Academics
Subject: Re: Anti-discrimination, legislative compromise, and strict
scrutiny
Is it permissible under current law for government actors to assess whether
"religious reasons for exemption are stronger in very small businesses that
generally are personally run by the owner than in larger and generally more
impersonal businesses" (emphases added)? I thought plenty of cases
including Thomas forbid government to judge the "importance" or "centrality"
sincere religious claims. Doug, are you talking about some notion of
secular "strength" of religious reasons?
David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.
From: Doug Laycock <dlayc...@virginia.edu <mailto:dlayc...@virginia.edu> >
Reply-To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu <mailto:religionlaw@lists.ucla.edu> >
Date: Wednesday, February 25, 2015 at 7:01 AM
To: 'Law & Religion issues for Law Academics' <religionlaw@lists.ucla.edu
<mailto:religionlaw@lists.ucla.edu> >
Subject: RE: Anti-discrimination, legislative compromise, and strict
scrutiny
Strict scrutiny would not be triggered under Smith/Lukumi, principally
because the legislated exemptions are for religious objectors, do not
discriminate on the basis of faith or denomination, and are a reasonable
legislative effort to exempt the cases where the claim to religious
exemption is strongest. Therefore, they do not imply a value judgment that
secular reasons for exemption are more important than religious reasons for
exemption. They imply only a judgment that religious reasons for exemption
are stronger in very small businesses that generally are personally run by
the owner than in larger and generally more impersonal businesses. Of course
that generalization is not perfect, and the precise line drawn between large
and small is inevitably arbitrary. But there is no discrimination between
religious and secular.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
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