Is this hypothetical analagous to the issue we are trying to get at? To be analagous, we would not be talking about someone who does not want to sell lottery tickets because of their religous beliefs....To be analagous, we would need to be talking about someone who doesn't want to sell lottery tickets to certain customers of such tickets because of their religious beliefs
Don Clark General Counsel United Church of Christ 2333 Waukegan Road Suite 160 Bannockburn, Illinois 60015 216-736-2121 cla...@ucc.org <div>-------- Original message --------</div><div>From: "Scarberry, Mark" <mark.scarbe...@pepperdine.edu> </div><div>Date:08/16/2015 9:21 PM (GMT-06:00) </div><div>To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> </div><div>Subject: Re: No substantial burden on you -- you just can't go into this line of business </div><div> </div>A little perspective may be in order. On the one side we have people denied the ability to engage in a common calling without having to violate sincerely held religious beliefs. On the other we have an inability of a patron to buy a lottery ticket without going a short distance to another store, or perhaps a slight reduction in govt revenue from people who decide not to gamble because it isn't quite as convenient. I suppose then that if the govt decides everyone should be able to buy pork at every store -- the pork industry is big in our state and people need their protein -- or that stores must be open Fridays, Saturdays, and Sundays -- think of the increased economic activity, sales taxes, etc. -- well, if you won't abide by the law then just get into another line of business. And if being shut out of a common calling -- because the govt is unwilling to respect your religious conscience -- isn't really a burden, then what about not getting the photographer or even the cake-baker of your choice? Be shut out of a line of work, or have to pick another of the readily available photographers or bakers. Think about it. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Aug 16, 2015, at 5:45 PM, "Ira Lupu" <icl...@law.gwu.edu> wrote: As many on the list know, my view of what Eugene calls the "Sherbert-Yoder model" is that the whole idea of a general regime of religious exemptions -- federal or state, constitutional or statutory -- under the terms we are using is a grand mistake. For an extended argument to this effect, see http://harvardjlg.com/wp-content/uploads/2015/01/Hobby-Lobby-and-the-Dubious-Enterprise-of-Religious-Exemptions.pdf But If I'm going to play, I need to know which iteration of the model is in play -- is it federal free exercise law on the eve of Smith? Betty loses (the others probably do likewise). See U.S. v. Lee -- you enter commerce, you have to play by the same rules as others, and you can't bring your religion in to trump those rules. Maybe the hypo is different, because not selling lottery tickets does not produce any competitive advantage, but I still think Betty would lose (maybe on Marty's suggestion of no reliance interests -- lots of ways to lose, not many ways to win between 1963 and 1989.) Are we operating under RFRA, pre- Hobby Lobby? Same result as above. RFRA restores pre-Smith principles. RFRA, post Hobby Lobby? I'm guessing that in the lower courts, same result as above (see the cited article about the judicial urge to hold exemptions in close check). At SCOTUS? Who knows? The Sherbert-Yoder model, which of course does not exist in the real world of law because it never did in these precise terms, is endlessly inconsistent and unprincipled. On Sun, Aug 16, 2015 at 8:10 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: I think we’ve now clearly stated the area of disagreement here, and I’d love to hear what others think. Recall that the hypo is this: Imagine a state requires all convenience stores to sell lottery tickets. Betty has just bought such a store, unaware of the lottery ticket sale requirement, and believes it would be wrong for her to sell lottery tickets, since that would involve them in gambling, which she believes is sinful (I believe United Methodists, some Mormons, and some Muslims have religious objections to gambling). The state has stepped up enforcement, and Betty now wants an exemption under a Sherbert/Yoder-type accommodation regime. My view is that having to forgo a private-sector occupation or business is itself a substantial burden. (When the government is acting as employer, and is only imposing the requirement on government jobs, the analysis may be different, just as the government-as-employer analysis is different from the government-as-sovereign analysis for the Free Speech Clause.) Of course, the government may be able to justify that burden under strict scrutiny, but under a Sherbert/Yoder-type accommodation regime, the government would indeed have to justify the burden (if it wants to deny the exemption). Marty’s view, unless I’m badly misreading it, is that this just isn’t a substantial burden, and the government can just deny the exemption to Betty (though not to people who have had such businesses for a while, and who are now surprised by newly imposed restrictions), without having to justify it under any heightened scrutiny at all. What is the view of others on the list? Eugene Marty Lederman writes: Unless there's something more about Betty that I don't know, then no, I think there's no substantial burden on her to violate her religious precepts, at least if she can get a decent return on her business. On your broader question, if a necessary component of the job is something that your religion prohibits, and if you care about not violating religious injunctions, then it simply makes no sense to say that that "particular occupation is the one that best fits" your "skills and temperaments." In which case the denial of an exemption does not impose a substantial burden on the exercise of your religion, at least not when it is required before you develop any serious reliance interests to the contrary. For example, assume you have a religious objection to doing anything in conjunction with abortion services -- delivering their mail, putting out their fires, protecting them from hoodlums, driving people to their door, checking their gas & electric levels, etc. Well, in that case, your religion precludes you from not only one but many professions, including all of the classic "common carrier" positions -- police officer, firefighter, cab driver, bus driver, meter reader, postal deliverer, FedEx driver, etc. Substantial burden on your religion because these professions aren't what you want them to be? Because you want to be able to do 95% of one of these jobs, rather than 100% of the other two gazillion jobs that are out there? I don't think so. On Sun, Aug 16, 2015 at 6:49 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: 1. Marty, let me try to pin you down on this: Regardless of whether the burden on Betty is less than on Ahmed and Charles, is your position that the burden on Betty is not “substantial” enough to qualify for a Sherbert/Yoder-based religious exemption regime (setting aside whether the government can justify denying the exemption under strict scrutiny)? 2. Let’s set aside the special case of government employment, where the government acting as employer may well have more power than the government acting as regulator (much as it does when it comes to the Free Speech Clause). Why wouldn’t it indeed be a substantial burden to be precluded from working in a small percentage of jobs in the economy? Occupations and lines of business aren’t fungible, and for many people one particular occupation is the one that best fits their skills, temperaments, intellectual interests, and felt economic needs. Why not conclude – assuming we’ve chosen to have a Sherbert/Yoder-type of regime – that it is indeed a “substantial burden” when the government requires a person to violate his religious beliefs in order to participate in a category of private-sector job, so that the government have to give an exemption unless it can show that denying the exemption is really necessary? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Sunday, August 16, 2015 3:09 PM To: Law & Religion issues for Law Academics Subject: Re: Substantial burden and requirements imposed on people who choose to go into certain businesses "I think that requirements that keep new entrants of certain religions out of various lines of business are substantial burdens." This cannot possibly be correct. It's not a substantial burden on one's religion simply to be precluded from working in a small percentage of jobs in the economy because the very nature of those jobs is inconsistent with one's religion. Assume, for instance, that my religion prohibits me from being involved in capital punishment. That would exclude me from a handful of government jobs, but I think I'd be perfectly ok. That is to say -- the effective exclusion from those jobs is highly, highly, unlikely to put any pressure on me, let alone substantial pressure, to violate my religious obligations.
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