Okay, I’ll bite. I don’t have firm views yet on this. My questions below all go to the “front end” of the analysis. And I get the distinction between a court’s engaging in its own (God’s-eye?) analysis of whether a practice is important to a religion simpliciter/in the abstract and a court’s asking whether a RFRA claimant herself regards an exercise of religion as important to her.
Question 1: What is the (semantic? logical?) relationship, if any, to an action’s being important to a person and its being an exercise of religion? Perhaps that’s not where “importance” fits in the RFRA analysis, so I’ll ask further questions. Question 2: Wouldn’t any religiously motivated action, and not just religiously motivated actions meeting various thresholds (e.g., central, mandated) be an “exercise of religion” under RFRA? Question 3: RFRA is triggered by “substantial” burden’s on a person’s exercise of religion. In the abstract I could see an argument that if there’s some religiously motivated action a person is barred from engaging in, but that action isn’t really important to her as a matter of religious belief, then given all the religiously motivated things she could still do, there’s no “substantial” burden on her exercise of religion-as-a-whole. However, RLUIPA defines “exercise of religion” to include “any exercise of religion …” (emphasis added) not just “important exercises of religion.” So this can’t be the significance of the importance of a particular exercise, right? (As I ask, I’m reminded of Scalia’s “throwing rice at a wedding” contention from Smith.) Question 4: Sterling wasn’t allowed to post her signs in the workplace. She could presumably have kept a note in her drawer, worn an engraved bracelet, emblazoned it across her dashboard if she had a car, …. Is the lack of demonstrated importance of posting legible-to-other signs in her work area somehow enough in light of these other places she could post her message enough to convert a complete prohibition of engaging in a religiously motivated practice (where she sought to) to be less than a “substantial” burden? Question 5a: Or am I wrong on the facts to characterize her action as “religiously motivated,” rather than just having “religious significance”? Question 5b: If so, what is the distinction, exactly, and to what text of RFRA should it matter? David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: <religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman <martin.leder...@law.georgetown.edu> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Date: Friday, May 5, 2017 at 8:20 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Re-upping: Sterling: A helpful test case on RFRA burdens Paul Clement's reply brief<https://linkprotect.cudasvc.com/url?a=http://www.scotusblog.com/wp-content/uploads/2017/05/16-814-pet-cert-reply.pdf&c=E,1,m0ZKnxfWUZI50lFDsNO1NugePJq7sgBBwVsKpJvqMhgePQY91ebO9uJax6mBoiq5Z3ywpxyQISM_xme6szULzF0ucnM9jzSOsn9NHr5Twg,,&typo=1>. Case schedule for Conference on 05/18. On Mon, Feb 20, 2017 at 3:05 PM, Marty Lederman <martin.leder...@law.georgetown.edu<mailto:martin.leder...@law.georgetown.edu>> wrote: Now that Paul Clement has filed a cert. petition<https://linkprotect.cudasvc.com/url?a=http://www.scotusblog.com/wp-content/uploads/2017/01/16-814-cert-petition.pdf&c=E,1,4DSslEr_JebobJ7WdRcTrDIUPz_8FnEWpN5XDA_qnGZTQXFUNXd4VhjR5uoxs-5iWSCXbJesYmg_SbrxfJOYV4vkJd9NurnDnDQn6mUJN9Vf&typo=1> in this case, I thought I might revive the thread, which didn't inspire any reactions last time around! Perhaps I'm alone, but it strikes me that the case raises a very interesting and important question about how to assess whether a burden on religious exercise is "substantial" for RFRA purposes. [snip]
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