"private citizens should not have to bear the costs associated with other citizens’ religious observance. "
Except they do. When my co-workers take time off work to observe religious restrictions, everyone else's work increases. Sometimes noticeably. And trying to sort between "meaningful" costs and *de minimis* costs is going to be tricky. The difference might be drawn between third parties being forced to subsidize a religious belief (I cannot eat ham, so you all have to chip in for a steak sandwich) and merely being asked to bear with it. Kevin Chen On Wed, Apr 1, 2015 at 4:38 PM, Nelson Tebbe <nelson.te...@brooklaw.edu> wrote: > > > 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> > 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 < > religionlaw-boun...@lists.ucla.edu> on behalf of James Oleske < > 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> 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 > 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. >
_______________________________________________ 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.
