1. It seems to me that the right question for
Sherbert/Yoder-model purposes is whether there’s an “equal burden on [the
applicants’] religious exercise” – rather, it’s whether there’s a substantial
burden. Perhaps the high school graduate in the hypothetical below is less
burdened than the 55-year-old. But I would think both are still substantially
burdened. (I set aside here whether the hypothetical mandate may violate the
Free Speech Clause.) Among other things, if the goal of religious exemption
regimes is to let people of all faiths participate as much as possible in
social life, including business life (unless, of course, that participation
necessarily undermines compelling government interests), I think that
requirements that keep new entrants of certain religions out of various lines
of business are substantial burdens.
2. Imagine a state requires all convenience stores to sell
lottery tickets. Three people all believe it would be wrong for them to sell
lottery tickets, since that would involve them in gambling, which they believe
is sinful (I believe United Methodists, some Mormons, and some Muslims have
religious objections to gambling). All claim an exemption from the state
requirement under a Sherbert/Yoder regime.
a. Ahmed has run his store for 30 years; the state has just
passed a law requirement convenience stores to sell lottery tickets.
b. Betty has just bought the store, unaware of the lottery
ticket sale requirement, which has existed for a while. The state has stepped
up enforcement, and she now wants an exemption.
c. Charles has run his store for 30 years, and has sold lottery
tickets. He has recently had a religious experience, and has become a member
of the United Methodist Church; he now believes it would be sinful for him to
sell lottery tickets, and he wants an exemption from the law.
Which of these three applicants can claim that his religious
beliefs are substantially burdened by the lottery ticket sale requirement, so
that the government would have to grant the exemption (assuming the state
follows a Sherbert/Yoder regime) unless it can show that denying the exemption
is necessary to serve a compelling government interest? I would think that all
three are substantially burdened, whether or not you think one of them is more
burdened than others. Am I mistaken?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Friday, August 14, 2015 9:25 AM
To: Law & Religion issues for Law Academics
Subject: Re: Colorado Cakeshop decision
The burden on religious exercise if you have to give up your business might be
quite substantial, especially if means choosing between your religion and
sacrificing many years of work, costs, good will, self-fulfillment, etc. But
not if "giving it up" means "not starting down that path in the first place
because you're not willing to abide by the common-carrier rules required of
such businesses." (Denial of unemployment benefits, likewise, imposes a much
greater burden on poor persons than on the wealthy.)
For example:
Let's take two people who both really want to teach 10th grade biology. And
they both have the same religious belief that it would be sinful for them to
teach Darwinian evolution. State X passes a law requiring all schools (public
and private) to teach Darwinian evolution in 10th Grade.
One difference between the two wannabe teachers: One of them is 55 years old,
and has been teaching 10th Grade Bio in a religious school for over 30 years,
from an evolutionist perspective, without speaking a word of Darwin. It's the
only job she's ever had, and her family depends upon her income. The other is
a recent high-school graduate who had planned to study for an education degree
so as to be able to fulfill his dream of teaching creationism to 10th Graders.
Neither of them can henceforth teach 10th Grade without violating their
religious precepts (or moving to a different state). Equal burden on their
religious exercise? I think not. Not even close.
On Fri, Aug 14, 2015 at 12:07 PM, Volokh, Eugene
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
I appreciate Marty’s argument, but I’m not sure it quite works.
The burden of giving up your business (if you want to avoid violating your
religious beliefs) strikes me as quite substantial, just as is the burden of
giving up your unemployment compensation (if you want to avoid violating your
religious beliefs). And I don’t think the fact that “you knew the job was
dangerous when you took it” changes that analysis, see Hobbie v. Unemployment
Appeals Comm’n:
The Appeals Commission also attempts to distinguish this case by arguing that,
unlike the employees in Sherbert and Thomas, Hobbie was the "agent of change"
and is therefore responsible for the consequences of the conflict between her
job and her religious beliefs. In Sherbert and Thomas, the employees held their
respective religious beliefs at the time of hire; subsequent changes in the
conditions of employment made by the employer caused the conflict between work
and belief. In this case, Hobbie's beliefs changed during the course of her
employment, creating a conflict between job and faith that had not previously
existed. The Appeals Commission contends that "it is . . . unfair for an
employee to adopt religious beliefs that conflict with existing employment and
expect to continue the employment without compromising those beliefs" and that
this "intentional disregard of the employer's interests . . . constitutes
misconduct." Brief for Appellee Appeals Commission 20-21.
In effect, the Appeals Commission asks us to single out the religious convert
for different, less favorable treatment than that given an individual whose
adherence to his or her faith precedes employment. We decline to do so. The
First Amendment protects the free exercise rights of employees who adopt
religious beliefs or convert from one faith to another after they are hired.
The timing of Hobbie's conversion is immaterial to our determination that her
free exercise rights have been burdened; the salient inquiry under the Free
Exercise Clause is the burden involved. In Sherbert, Thomas, and the present
case, the employee was forced to choose between fidelity to religious belief
and continued employment; the forfeiture of unemployment benefits for choosing
the former over the latter brings unlawful coercion to bear on the employee's
choice.
(By the way, I’m not sure on these facts whether the Colorado cake shop went
into business before or after Colorado banned sexual orientation discrimination
in public accommodations, but I’m happy to set that aside for purposes of the
broader discussion.)
Eugene
Marty Lederman writes:
Or to put Paul's point in a slightly different, more doctrinal light -- and one
that harkens back to our landlord discussions circa 1998 [you can look it up!]
-- if we're in a RFRA jurisdiction, there is far less of a "substantial burden"
on one's religious exercise if the government "sanction" is merely "if you're
not willing to serve everyone, then you can't be a common carrier" than if the
government actually makes it unlawful for you to do what your religion requires
(e.g., O Centro, Yoder).
Of course, the burden is higher on those who developed a reliance interest on
their being able to discriminate -- e.g., those who paid huge costs in terms of
time and money in learning a profession, and building a business, at a time
when the business was not viewed as a common carrier, or where (in this case) a
prohibition on sexual-orientation discrimination was not foreseeable.
But if one entered the profession when it was already a rule that "you must
serve all comers," or "you can't discriminate on the basis of X,Y and Z," then
surely the denial of a religious exemption causes far less of a burden than in
O Centro-like cases. Not no burden, of course -- after all, if it's always
been your dream to be a police officer, or to own a retail business in a state
where such businesses have to serve all comers, then those laws do put some
pressure on you to deviate from your religious beliefs. But not nearly as much.
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