Alan, I can’t speak for others who have been defending a principle against burden-shifting to third parties, but I do not believe it prohibits religion accommodations that result in costs to the government or to the public. Rather, the principle prohibits government accommodations that shift meaningful costs from religious citizens to other identifiable private citizens. And the reason for this is easy to articulate and deeply rooted — private citizens should not have to bear the costs associated with other citizens’ religious observance.
On Apr 1, 2015, at 4:07 PM, Alan E Brownstein <aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>> wrote: The problem I have with Jim's argument, if I understand him correctly, is that it seems to suggest that no religious exemption can be accepted if it causes any harm to a third party. (I'm not sure if Jim includes the general public or the public fisc in "third party.") I think many liberals believe (or at least they used to believe) that rights are expensive political goods. We protect them even if we have to incur some cost or harm to third parties or the public in order to do so. Of course, that leaves open the difficult question of determining when the price for protecting a right is too high. (And when we are talking about the right to discriminate in employment or public accommodations, leaving religious institutions aside, the price is almost always too high.) But I see no historical consensus that we only protect freedom of speech or religious liberty when the cost of doing so is zero. That certainly wasn't the understanding of freedom of speech that Justice Brandeis defended in his famous dissents on which contemporary free speech doctrine is based. Indeed, the argument that we should only accept zero cost religious accommodations is not only inconsistent with the way we generally understand rights, it seems inconsistent with the way we evaluate government regulations generally. It is one thing to argue that we should reject a religious exemption when the harm or cost of granting it is too high. That position is consistent with the general cost benefit analysis we use to discuss any government decision. But why should we only accept zero cost religious accommodations? We routinely allow government to enact laws that result in some costs, burdens, and harms to third parties or the general public that serve a variety of purposes. Alan ________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> <religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> on behalf of James Oleske <jole...@lclark.edu<mailto:jole...@lclark.edu>> Sent: Wednesday, April 1, 2015 12:22 PM To: Law & Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights The butcher example Chip gives is why I suggested last spring that the Court might want to read the Lee language not as an absolute rule, but rather, a strong presumption against exemptions in the commercial realm that can be overcome in "the very rare case where the basis for the presumption (a third-party harm) does not exist." Alas, the Court instead simply discarded the Lee language wholesale by saying RFRA went further than the pre-Smith law. - Jim On Wed, Apr 1, 2015 at 12:09 PM, Ira Lupu <icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote: I do not think most liberals oppose exemptions for businesses per se -- imagine a law that compelled a butcher to carry products in conflict with religious dietary laws to which the butcher and his customers subscribe. Liberals oppose exemptions that impinge on the welfare of third parties -- Hobby Lobby (those female employees still do not have contraceptive coverage) or wedding vendor exemptions from public accommodations laws (those exemptions allow material and dignitary injury to potential customers). U.S. v. Lee involved injury to other family members of Amish employees, as well as others in the social insurance pool. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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.
_______________________________________________ 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.
