Dear Nelson, I don't see that "the Hobby Lobby Court reaffirmed the principle against burden-shifting in religion accommodations" or that "Justice Kennedy made it central to his vote" if by "principle" here you mean the argument -- which, of course, you and several others have very ably developed and expounded -- that the Establishment Clause rules out (all?) legislative accommodations that involve or impose third-party costs (on specific, identifiable third parties). (I ask about "all" because my recollection is that you have said that the accommodation at issue in Amos was / is permissible.) Justice Ginsburg notes in a footnote that "the government’s license to grant religion-based exemptions from generally applicable laws is constrained by the Establishment Clause" but, it seems to me, she did not rely on this point in her dissent, which seemed to me to be more about RFRA's particular elements. Justice Kennedy says, in his penultimate paragraph, "[y]et neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling[,]" but he seems to be doing so in the context of applying what he and the Court call RFRA's "stringent" test and not necessarily to be invoking an Establishment Clause constraint. And, Justice Alito does not mention the Establishment Clause at all.
I also continue to think -- although the conversation about the rule you and other leading scholars propose is very important -- that it is not quite the case that "the case law in both areas is lopsided in favor of the principle" -- again, if the "principle" is the fairly strong Establishment Clause constraint you all have proposed -- but . . . disagreement among colleagues helps make life interesting and I guess we just understand Caldor and Cutter differently. Marc DeGirolami's discussion (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2013/12/exemptions-from-the-mandate-do-not-violate-the-establishment-clause.html) and Eugene Volokh's (here: http://volokh.com/2013/12/04/3b-granting-exemption-employer-mandate-violate-establishment-clause/) were, for me, helpful. With respect to your (and others') Establishment Clause argument, I do have a quick question. (I am sorry if I am forgetting an answer that you have already presented in your scholarship!) Do you think we should think of the no-burden-shifting rule as applying, in a sense, only *after* we have identified whatever limits on government regulation the First Amendment might require (e.g., the ministerial exception), and as applying only as a constraint on discretionary accommodations, or should we think of the rule as kicking in "earlier," and as helping to fix the point where the First Amendment rights of, say, Hosanna-Tabor school end? Or does it not matter? Again, please feel free just to refer me to something else. All the best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State & Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN page <http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> Blogs: Prawfsblawg <http://prawfsblawg.blogs.com/> Mirror of Justice <http://mirrorofjustice.blogs.com/> Twitter: @RickGarnett <https://twitter.com/RickGarnett> On Wed, Apr 1, 2015 at 7:07 PM, Nelson Tebbe <nelson.te...@brooklaw.edu> wrote: > > > Thanks, Alan. Speaking again only for myself, I am open to some > balancing, not only as to this particular principle (against burden > shifting to third parties) but also as a general methodology, as you know. > But the conversation is not yet at that point. Right now, the main debate > is over whether the principle even exists in constitutional law, and what > its most basic applications might be, not over its contours. As a matter of > doctrine, the Hobby Lobby Court reaffirmed the principle against > burden-shifting in religion accommodations, and Justice Kennedy made it > central to his vote, but there is some troubling language in the opinion > (see, e.g., footnote 37 and the sharp division between RFRA and pre-Smith > cases). As a matter of application, the Hobby Lobby Court did not make its > ruling contingent on the absence of harm to third parties. And in fact > employees of Hobby Lobby continue to be harmed right now. And as a matter > of theory, finally, prominent scholars continue to deny that the principle > exists and has legal status, under either free exercise or > nonestablishment, despite the fact that the case law in both areas is > lopsided in favor of the principle. But again my basic answer is yes, I am > open to that approach. > > On Apr 1, 2015, at 5:46 PM, Alan E Brownstein <aebrownst...@ucdavis.edu> > wrote: > > I appreciate your point, Nelson. And I think the principle > that "private citizens should not have to bear the costs associated with > other citizens’ religious observance" deserves respect. Standing alone, it > would often be dispositive. Where we disagree, I think, is that in > religious exemption cases I see two principles here that deserve our > respect. The one I just quoted above and the principle that the majority > and government should not prohibit or burden another citizen's religious > observance. I think, you can tell me if I'm wrong, that you would agree > that this principle standing alone also deserves respect. If there is no > harm to third parties, you would support religious exemptions. > > Then the question becomes what do we do when these two principles are in > conflict with each other. I don't think either trumps the other all of the > time. I think as the harm to third parties increases, the principle that > citizens should not have to bear the costs associated with the other > citizen's religious observance outweighs the religious liberty principle. I > understand you to be saying that the religious liberty principle is always > trumped in these cases without regard to the magnitude of the costs > involved. > > There are a lot of religious accommodations that result in third parties > incurring some cost. A RLUIPA land use accommodation might result in some > neighboring homeowner, business or farmer incurring some diminution of > value in their property. A public university accommodation shifting move-in > day so that it doesn't fall on the Jewish High Holy days may require a > shift in the academic calendar that inconveniences the travel plans of > specific faculty, students and their families. A court accommodating the > religious obligations of a religious attorney or witness may delay or > otherwise increase the cost of litigation. A law banning male circumcision > exempts Jewish families from its requirements. Does the existence of harm > to third parties in these situations and others require the invalidation of > all of these accommodations without regard to the magnitude of the harm > borne by third parties? > > Alan > > > ------------------------------ > *From:* religionlaw-boun...@lists.ucla.edu < > religionlaw-boun...@lists.ucla.edu> on behalf of Nelson Tebbe < > nelson.te...@brooklaw.edu> > *Sent:* Wednesday, April 1, 2015 1:38 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights > > > > 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 > > > > _______________________________________________ > 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.
