Re: RLUIPA, was RE: Potentially Important California State Case
In a message dated 3/1/2004 9:45:37 PM Eastern Standard Time, [EMAIL PROTECTED] writes: How does a generally applicable, neutral law "protect those that need the most protection in this society (as opposed to one that provides exemptions)"? I strongly take exception to the idea that some one-size-fits-all approach benefits the least among us. In fact, it generally does the opposite, as most minority groups could tell you (whether they be racial, religious or otherwise). The law against obstruction of justice protects children whose sexual abuse is being hidden by churches. I do not object to exemptions at all, but think all exemptions should be examined in light of the public good, not solely the needs of the particular religious institution. Moreover, what would be the purpose of the Free Exercise Clause if the Constitution did not regard religion with some measure of support? In your world, the Establishment Clause could easily carry the burden. I think Smith, Lukumi, and Locke are rightly decided. BTW, your incessant invocation of the Catholic church abuse crisis ignores, of course, that most of those invested with trust (including, for example, the family and public school teachers) have been responsible for child sexual abuse. Singling out the Catholic Church at every turn is inappropriate as I doubt neither the Founders nor the current members of the Court believe children to be at the center of the Religion Clauses. The Catholic Church is the most recent example of harm to the public good. There are other churches who have permitted and hidden the abuse of children as well, to be sure. They will be held to account if the legal system is structured in a way that does not fail these children. This Court is highly protective of children across First Amendment jurisprudence. Marci ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Locke v. Davey and expanded free exercise rights
I think Alan has made an interesting point here. The footnote states that "at least in some respects, [Washington's] constitution provides greater protection of relgious liberties than the Free Exercise Clause." First, I don't think it is unconstitutional for state constitutions, anymore than the First Amendment, to require strict scrutiny in certain circumstances, so long as there is an establishment principle at work as well. The goal is a balance of power between church and state, and that can be achieved via different calculations. There is no state that provides strict scrutiny in every circumstance under its state constitution, just as there was never a rule at the Supreme Court that strict scrutiny applied in every circumstance. It is beyond cavil that such a regime is intolerable. This footnote would have worried me had it spoken approvingly of a regime in which every law affecting religious entities is subject to strict scrutiny. Second, the footnote is speaking to judicially crafted interpretations of the free exercise clause. It does not speak to the proper conditions for legislative accommodation. Proper legislative accommodation requires a weighing of the special privilege to avoid the law against the harm to the public interest. The sort of blind accommodation at the base of RFRA and RLUIPA made it impossible for members of Congress to engage in this calculus. The failure to consider the public interest and to only focus on the benefit to religion shows that the law has an improper purpose. Marci Sorry for not being clearer, Marci. I'm not focusing on the holding in Locke but only on the note about expansive free exercise rights under the Washington constitution. I thought from some earlier posts quite a while back that you believed that religious exemptions that were not limited to specific problems violated the Establishment Clause -- and that this was one of your concerns with RFRA and RLUIPA. These laws created across the board exemptions, not a situation specific exemption. They applied to too many different activities and circumstances. (I may have gotten your position on this wrong. Obviously, if I did the rest of my question will not make a lot of sense.) State constitutions that provide broader and more rigorous protection for free exercise rights than the federal constitution seem to me to accept an across the board standard for religious exemptions. They typically apply a rule that requires some form of rigorous review to laws or individual assessments that substantially burden the exercise of religion. I would assume that if a state statute that creates an across the board exemption violates the Establishment Clause, a state constitutional provision that is interpreted to apply a similar exemption standard would also violate the Establishment Clause. I read Locke as commenting favorably on the expansive protection provided by the Washington constitution's free exercise clause. The Court seemed to suggest that play in the joints applied to both free exercise and establishment clause values and that the fact that the state provided greater protection under the state's free exercise clause than the federal constitution required helped to justify the Court's establishment clause holding. I don't suggest that these state constitutional interpretations are identical to RFRA or RLUIPA. Merely that they apply broadly to laws or individual assessments that substantially burden the exercise of religion. So my question is -- Do you believe that free exercise provisions in state constitutions that provide more rigorous protection than Smith and apply generally and broadly violate the Establishment Clause -- and if so, does the Court's language in Locke undercut such an argument. Alan Brownstein UC Davis ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Locke v. Davey and expanded free exercise rights
Several postings have suggested that any accommodation that imposes a burden on third parties is unconstitutional. Why should this be so? A failure to accommodate burdens the rights of religious individuals or institutions. Why should there be an inflexible rule that where there are unavoidably burdens on one party or the other, the burdens must inevitably be borne by the religious side to the dispute? In this regard it should be noted that in the California case, the burden on Catholic Charities was one of principle, the burden on employees was merely financial (They had to pay for their own contraceptives; Catholic Charities was not firing persons who used contraceptives). What is it (except ,perhaps ,deference to the democratic process) that makes all seem to assume that even in this context, the burden on religion must yield to the secular burden? Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]On Behalf Of [EMAIL PROTECTED] Sent: Tuesday, March 02, 2004 8:49 AM To: [EMAIL PROTECTED] Subject: Re: Locke v. Davey and expanded free exercise rights I think Alan has made an interesting point here. The footnote states that at least in some respects, [Washington's] constitution provides greater protection of relgious liberties than the Free Exercise Clause. First, I don't think it is unconstitutional for state constitutions, anymore than the First Amendment, to require strict scrutiny in certain circumstances, so long as there is an establishment principle at work as well. The goal is a balance of power between church and state, and that can be achieved via different calculations. There is no state that provides strict scrutiny in every circumstance under its state constitution, just as there was never a rule at the Supreme Court that strict scrutiny applied in every circumstance. It is beyond cavil that such a regime is intolerable. This footnote would have worried me had it spoken approvingly of a regime in which every law affecting religious entities is subject to strict scrutiny. Second, the footnote is speaking to judicially crafted interpretations of the free exercise clause. It does not speak to the proper conditions for legislative accommodation. Proper legislative accommodation requires a weighing of the special privilege to avoid the law against the harm to the public interest. The sort of blind accommodation at the base of RFRA and RLUIPA made it impossible for members of Congress to engage in this calculus. The failure to consider the public interest and to only focus on the benefit to religion shows that the law has an improper purpose. Marci Sorry for not being clearer, Marci. I'm not focusing on the holding in Locke but only on the note about expansive free exercise rights under the Washington constitution. I thought from some earlier posts quite a while back that you believed that religious exemptions that were not limited to specific problems violated the Establishment Clause -- and that this was one of your concerns with RFRA and RLUIPA. These laws created across the board exemptions, not a situation specific exemption. They applied to too many different activities and circumstances. (I may have gotten your position on this wrong. Obviously, if I did the rest of my question will not make a lot of sense.) State constitutions that provide broader and more rigorous protection for free exercise rights than the federal constitution seem to me to accept an across the board standard for religious exemptions. They typically apply a rule that requires some form of rigorous review to laws or individual assessments that substantially burden the exercise of religion. I would assume that if a state statute that creates an across the board exemption violates the Establishment Clause, a state constitutional provision that is interpreted to apply a similar exemption standard would also violate the Establishment Clause. I read Locke as commenting favorably on the expansive protection provided by the Washington constitution's free exercise clause. The Court seemed to suggest that play in the joints applied to both free exercise and establishment clause values and that the fact that the state provided greater protection under the state's free exercise clause than the federal constitution required helped to justify the Court's establishment clause holding. I don't suggest that these state constitutional interpretations are identical to RFRA or RLUIPA. Merely that they apply broadly to laws or individual assessments that substantially burden the exercise of religion. So my question is -- Do you believe that free exercise provisions in state constitutions that provide more rigorous protection than Smith and apply generally and broadly violate the Establishment Clause -- and if so, does the Court's language in Locke undercut such an argument. Alan Brownstein UC Davis
Re: sexual misconduct by clergy
I cannot untrouble Marci with respect to the article that Bob Tuttle and I just posted. Nor will I try on this list to explain and defend the entire piece; it's on SSRN for those who wish to look at it. I will say only this: 1) Thanks to Marty Lederman for his kind words about the piece. 2) The issue of criminal and civil liability for a member of the clergy who sexually abuses a child is indeed very simple, and is in no way influenced by First Amendment considerations. Our paper says exactly that. What is NOT simple, and what is the subject of most of our paper, are the following three categories of issues: a) suits for breach of fiduciary duty against clergy by adults with whom the clergy-defendant has had consensual sexual relations as well as some sort of counseling relation; b) suits against religious entities for negligent ordination, hiring, supervision, retention, etc., of clergy who commits acts of sexual misconduct (sometimes vs. children, sometimes vs. adults) in cases in which the entities' leaders did not have actual knowledge of prior sexual misbehavior by the clergyman; and c) suits against religious entities for breach of fiduciary duties to the victims of misconduct, in cases in which the entity intervened but arguably did not do enough for the victim. These situations, though not the ones in the public mind these days, do indeed present difficult issues of the intersection of tort law and the First Amendment. And cases presenting such issues are abundant. I hope that our paper contributes in some small way to their intelligent discussion and resolution. Chip Lupu On 1 Mar 2004 at 19:37, [EMAIL PROTECTED] wrote: Well, let me just say that I find Chip's and Bob's article on church autonomy posted today troubling. It was part of a church autonomy conference at BYU earlier this month. I will be posting my article for the conference on SSRN in the near future. I don't think the issues are obscure or complex. Rather, the public good is the only correct guiding principle in deciding whether generally applicable, neutral laws apply to religious institutional conduct, not whether religious groups should be shielded from the application of general laws. Belief, and therefore internal structure, may be protected, a la Reynolds and Smith, but there is no reason to give religious institutions special treatment relieving them from obligations under general laws. There is no philosophical or theological or legal theory that supports shielding religious groups in this way. It's all a hearkening back to the clergy privilege in England that rightfully was rejected eventually. Children are seriously, and I mean seriously, at risk under any version of church autonomy. Lipservice to children is not enough; the law must make it possible for them to be fully protected. An overreading of the Court's religious institution cases led the Catholic Church to believe it had a right to autonomy and therefore to some of its worst errors involving children in the last several decades. I totally agree with Marty on vaccinations. I also agree with Marty that the key with understanding RLUIPA is the assessment of harm on each side, and I find the assessments by the religious groups to be divorced from any consideration of the general public good. I find it amusing, though, that Marty would say that when state and local interests are important, they will prevail. The California RLUIPA bill that was killed proposed that many interests dear to the hearts of private homeowners can never be considered to be compelling. The push by those defending RLUIPA is to say that NOTHING satisfies the compelling interest test but the very RARE land use law. This is an attempt to takeover land use law for the benefit of religious groups, period. And I don't see the federal government's intervention in these cases muting that point at all. I wish it were otherwise. Marci n a message dated 3/1/2004 7:16:45 PM Eastern Standard Time, [EMAIL PROTECTED] writes: Well, I think I do agree with Marci on one thing: Among the worst, least defensible religious accommodations are exemptions for clergy for child abuse reporting and for medical neglect of children. Indeed, I've posted several times here that I think many religious exemptions from vaccination requirements are unconstitutional. Even here, however, the questions are often very complex. In the child-abuse setting, for example, see the questions examined with care in the extremely detailed and thoughtful draft article to which Chip Lupu linked earlier today. Marci's principal point -- and it's one for which I have a great deal of sympathy -- is that religious accommodations ought to be suspect if they impose significant costs on other private parties. I think the Court agrees with this, too -- see, e.g., Caldor, Hardison and Walsh.
Re: sexual misconduct by clergy
In a message dated 3/2/2004 10:19:43 AM Eastern Standard Time, [EMAIL PROTECTED] writes: b) suits against religious entities for negligent ordination, hiring, supervision, retention, etc., of clergy who commits acts of sexual misconduct (sometimes vs. children, sometimes vs. adults) in cases in which the entities' leaders did not have actual knowledge of prior sexual misbehavior by the clergyman This is the arena where Chip and I have the most disagreement. He and Bob have suggested a test (NY Times v. Sullivan-derived) that discourages religious organizations from ascertaining the background of clergy, which is a serious flaw. This is precisely, as the John Jay Report acknowledges, where churces need strong incentive. Had the Catholic Church had such incentives to engage in simple background checks, many children might have been saved from horrific abuse. I regret that he is not interested in debating this on the listserv, but I am very interested in debating with those who are thinking about the role of the Religion Clauses in the creation of public law. I would also like to invite a discussion of what the John Jay Report means for the legal system. It is my view that the Catholic Church's clergy abuse era was in no small part caused by an inadequate legal system. Blame belongs to the bishops, to the perpetrators, but also to the legal system for failing to build in incentives to ensure children are safe, for failing to prosecute and incarcerate pedophiles, and for a failure to value children above clergy. One particularly important part of this lies in the exemptions for clergy reporting of sexual abuse and in misguided "church autonomy" theories in various states. I have found it odd that the issuance of the report has not fomented a discussion of these issues by this particular listserv. The silence of the culture that permitted an institution to abuse thousands of children for decades needs to be broken in the academy as much as the general culture. Sadly, this is not the only religious institution guilty of widespread abuse of children; it's just the only one where a significant number of victims have found a road out of their suffering into the public eye. Marci ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Locke v. Davey and expanded free exercise rights
The question posed was whether Catholic Charities were religion. If so, they would have qualified for an exemption from the rule. If they are a religion, as they insist, should that affect their eligibility to participate in state and federal programs? [EMAIL PROTECTED] 03/02/2004 6:20:00 AM Several postings have suggested that any accommodation that imposes a burden on third parties is unconstitutional. Why should this be so? A failure to accommodate burdens the rights of religious individuals or institutions. Why should there be an inflexible rule that where there are unavoidably burdens on one party or the other, the burdens must inevitably be borne by the religious side to the dispute? In this regard it should be noted that in the California case, the burden on Catholic Charities was one of principle, the burden on employees was merely financial (They had to pay for their own contraceptives; Catholic Charities was not firing persons who used contraceptives). What is it (except ,perhaps ,deference to the democratic process) that makes all seem to assume that even in this context, the burden on religion must yield to the secular burden? Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of [EMAIL PROTECTED] Sent: Tuesday, March 02, 2004 8:49 AM To: [EMAIL PROTECTED] Subject: Re: Locke v. Davey and expanded free exercise rights I think Alan has made an interesting point here. The footnote states that at least in some respects, [Washington's] constitution provides greater protection of relgious liberties than the Free Exercise Clause. First, I don't think it is unconstitutional for state constitutions, anymore than the First Amendment, to require strict scrutiny in certain circumstances, so long as there is an establishment principle at work as well. The goal is a balance of power between church and state, and that can be achieved via different calculations. There is no state that provides strict scrutiny in every circumstance under its state constitution, just as there was never a rule at the Supreme Court that strict scrutiny applied in every circumstance. It is beyond cavil that such a regime is intolerable. This footnote would have worried me had it spoken approvingly of a regime in which every law affecting religious entities is subject to strict scrutiny. Second, the footnote is speaking to judicially crafted interpretations of the free exercise clause. It does not speak to the proper conditions for legislative accommodation. Proper legislative accommodation requires a weighing of the special privilege to avoid the law against the harm to the public interest. The sort of blind accommodation at the base of RFRA and RLUIPA made it impossible for members of Congress to engage in this calculus. The failure to consider the public interest and to only focus on the benefit to religion shows that the law has an improper purpose. Marci Sorry for not being clearer, Marci. I'm not focusing on the holding in Locke but only on the note about expansive free exercise rights under the Washington constitution. I thought from some earlier posts quite a while back that you believed that religious exemptions that were not limited to specific problems violated the Establishment Clause -- and that this was one of your concerns with RFRA and RLUIPA. These laws created across the board exemptions, not a situation specific exemption. They applied to too many different activities and circumstances. (I may have gotten your position on this wrong. Obviously, if I did the rest of my question will not make a lot of sense.) State constitutions that provide broader and more rigorous protection for free exercise rights than the federal constitution seem to me to accept an across the board standard for religious exemptions. They typically apply a rule that requires some form of rigorous review to laws or individual assessments that substantially burden the exercise of religion. I would assume that if a state statute that creates an across the board exemption violates the Establishment Clause, a state constitutional provision that is interpreted to apply a similar exemption standard would also violate the Establishment Clause. I read Locke as commenting favorably on the expansive protection provided by the Washington constitution's free exercise clause. The Court seemed to suggest that play in the joints applied to both free exercise and establishment clause values and that the fact that the state provided greater protection under the state's free exercise clause than the federal constitution required helped to justify the Court's establishment clause holding. I don't suggest that these state constitutional interpretations are identical to RFRA or RLUIPA. Merely that they apply broadly to laws or individual assessments that substantially burden the exercise of religion. So my question is -- Do you believe that free exercise provisions in state constitutions
Locke, Lukumi, and RLUIPA
I actually have a day job and have no intention of responding to Marci's frenetic rate of posting. She may be right about where the Court will some day go, just as she was right about the shift of direction in Boerne. (She will respond that there was no shift, but in fact her brief was based almost entirely on dissenting opinions.) I will respond once to some of her more extravagant claims, and then go back to work. Hr reading of Locke is mostly imagination, and her accounts of RLUIPA become wilder and wilder over time. It seems to me self-evident that Locke is a funding case, that funding cases have always been special, that this was not just any funding case but a case about funding the training of clergy, and that it predicts nothing about cases involving burdensome regulation with a scope of less than general applicability, or with only arguably general applicability. Locke could have been decided the other way; I helped with Tom Berg's brief urging that it be decided the other way. But it was the wrong case, reaching much too far, brought much too soon after Zelman. It may well lead to holdings that states do not have to equally fund any religious provision of services; Rosenberger may be confined to speech cases. But Locke is not about regulation. It is elementary first-year case reading that there was no regulation issue in the case. What Rehnquist actually says is: It [the Washington law] imposes neither criminal nor civil sanctions on any type of religious service or rite. . . . [W]e can think of few areas in which a State's antiestablishment interests come more into play. Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an `established' religion. . . . Most States that sought to avoid an establishm0ent of religion around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry. And in his concluding paragraph: The State's interest in not funding the pursuit of devotional degrees is substantial and the exclusions of such funding places a relatively minor burden on Promise Scholars. If any room exists between the two Religion Clauses, it must be here. We need not venture further into this difficult area in order to uphold the Promise Scholarship Program as currently operated by the State of Washington. The second and third to last paragraphs are about animus, and they say there is not any. This is after all the talk about the long tradition of not funding the clergy. The implication seems to be that if there were animus, that might matter even in a case about not funding the clergy, but that issue is not presented. Marci wants to read those paragraphs as implying that animus is always required, no matter the facts, and whether or not funding the clergy is at issue. Obviously, that is at most an implication, and if implied, the wildest sort of dicta. To draw her implication, you have to treat everything he said about funding the clergy as utterly irrelevant to the opinion. Read the two paragraphs for yourself, but I don't think her reading is implied at all. There is a subordinate clause introducing the animus paragraphs: Far from evincing the hostility toward religion which was manifest in Lukumi .. ., which tells us what we already knew -- that the facts of Lukumi can be interpreted in terms of animus. Marci's side will quote that phrase from here to Kingdom come, but cases are not overruled or reinterpreted in such passing references. In Smith, the Court cited with apparent approval the district court's opinion in Lukumi. People told me the Court had already decided Lukumi before we filed the cert petition. I said we might win or we might lose, but the last thing I was worried about was that the Court might feel bound by a passing citation in rank dictum to the district court's opinion. It remains the case that there is an animus section in the Lukumi opinion, and that section got only two votes. Someone on each side will have to argue the competing interpretations of Lukumi down the road; it was not decided in Locke. As to RLUIPA, it is not true that there is always a place to worship. Marci's claim that every municipality provides a place for churches is simply false. The hearing record has a survey of suburbs in northern Cook County (Chicago); in 22 of them, I think, there was no place to put a new church. Don't think just of the established churches who acquired their sites and raised their buildings before the advent of zoning laws. The problem is siting new churches, and especially for small churches struggling to get started, that problem is severe. A church in the wrong place can indeed be a significant problem for the neighbors, and that is why there is a compelling interest exception in RLUIPA. But many of these cases involve no such thing except for people who believe they have the right to control all
Re: Locke v. Davey and expanded free exercise rights
Marc makes a good and perfectly fair point. The question for me is the relative balance of the burdens. Where there is a generally applicable law, that means that there is some harm the legislature was trying to prevent. Where it imposes a burden on religious entities, I think it is perfectly legitimate for legislators to consider whether lifting that burden is appropriate. If it [nulifying the law for the religious practice] imposes a de minimis burden on the society, then by all means, lift the burden. The peyote exemption is a perfect example. But where it imposes a serious and intolerable burden on the society, the burden on the religion is outweighed. For example, the decision to exempt clergy from child abuse reporting places an intolerable burden on children by leaving them unprotected where the only one who has knowledge of the abuse does not report. I think the Court in Smith was dead-on when it stated that we should expect legislatures to be sympathetic listeners to claims of religious burden. My greatest concern is when the legislature only listens to the religious institution and then fails to listen to (or ask) those significantly harmed by lifting the burden on the religious institution. When legislators assume that those who are religious will not harm the public good, they are already harming the public good by failing to make an independent assessment of it. Marci What is it (except ,perhaps ,deference to the democratic process) that makes all seem to assume that even in this context, the burden on religion must yield to the secular burden? Marc Stern ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Locke v. Davey and expanded free exercise rights
Brian raises an important question: I think Catholic Charities, like many religious institutions, will have to make a choice at this point, one that they have been pushed to by the law for the past three decades; do they want to continue receiving public monies, in which case they may have to describe themselves as secular organizations, or do they want to proclaim their religious character, get the exemption, and then lose the funding. (Alternatively, I suppose they could just drop drug coverage for their employees, but they claim that would be unjust.) My hope is that they will do the latter, with the unintended (?) consequence of the law being that a lot of disadvantaged people will lose support. (Unless funding is supplied by private donations...) Richard Dougherty University of Dallas Brian Landsberg wrote: The question posed was whether Catholic Charities were religion. If so, they would have qualified for an exemption from the rule. If they are a religion, as they insist, should that affect their eligibility to participate in state and federal programs? [EMAIL PROTECTED] 03/02/2004 6:20:00 AM Several postings have suggested that any accommodation that imposes a burden on third parties is unconstitutional. Why should this be so? A failure to accommodate burdens the rights of religious individuals or institutions. Why should there be an inflexible rule that where there are unavoidably burdens on one party or the other, the burdens must inevitably be borne by the religious side to the dispute? In this regard it should be noted that in the California case, the burden on Catholic Charities was one of principle, the burden on employees was merely financial (They had to pay for their own contraceptives; Catholic Charities was not firing persons who used contraceptives). What is it (except ,perhaps ,deference to the democratic process) that makes all seem to assume that even in this context, the burden on religion must yield to the secular burden? Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of [EMAIL PROTECTED] Sent: Tuesday, March 02, 2004 8:49 AM To: [EMAIL PROTECTED] Subject: Re: Locke v. Davey and expanded free exercise rights I think Alan has made an interesting point here. The footnote states that at least in some respects, [Washington's] constitution provides greater protection of relgious liberties than the Free Exercise Clause. First, I don't think it is unconstitutional for state constitutions, anymore than the First Amendment, to require strict scrutiny in certain circumstances, so long as there is an establishment principle at work as well. The goal is a balance of power between church and state, and that can be achieved via different calculations. There is no state that provides strict scrutiny in every circumstance under its state constitution, just as there was never a rule at the Supreme Court that strict scrutiny applied in every circumstance. It is beyond cavil that such a regime is intolerable. This footnote would have worried me had it spoken approvingly of a regime in which every law affecting religious entities is subject to strict scrutiny. Second, the footnote is speaking to judicially crafted interpretations of the free exercise clause. It does not speak to the proper conditions for legislative accommodation. Proper legislative accommodation requires a weighing of the special privilege to avoid the law against the harm to the public interest. The sort of blind accommodation at the base of RFRA and RLUIPA made it impossible for members of Congress to engage in this calculus. The failure to consider the public interest and to only focus on the benefit to religion shows that the law has an improper purpose. Marci Sorry for not being clearer, Marci. I'm not focusing on the holding in Locke but only on the note about expansive free exercise rights under the Washington constitution. I thought from some earlier posts quite a while back that you believed that religious exemptions that were not limited to specific problems violated the Establishment Clause -- and that this was one of your concerns with RFRA and RLUIPA. These laws created across the board exemptions, not a situation specific exemption. They applied to too many different activities and circumstances. (I may have gotten your position on this wrong. Obviously, if I did the rest of my question will not make a lot of sense.) State constitutions that provide broader and more rigorous protection for free exercise rights than the federal constitution seem to me to accept an across the board standard for religious exemptions. They typically apply a rule that requires some form of rigorous review to laws or individual assessments that substantially burden the exercise of religion. I would assume that if a state statute that creates an across the board
Re: Locke v. Davey and expanded free exercise rights
The Women's Contraceptive Equity Act (WCEA) is not limited to organizations that receive state funds. Catholic Charities could refuse all state support and it would still have to comply with the WCEA. Further, the criteria employed by the Act to determine which religious organizations are exempt from the Act says nothing about government funding. I don't think there can be an exact equivalence between Establishment Clause prohibitions on state support and Free Exercise protection against government interference. An individual or organization may engage in some activities for religious reasons, receive free exercise protection for that choice, and still be eligible for state support. I think a soup kitchen affiliated with a Synagogue can receive funds from the state to feed the hungry and also have the free exercise right not to operate on Saturday or to maintain a Kosher kitchen. Do you disagree, Brian? I do agree that a religious organization that receives direct subsidies from the state must accept conditions accompanying those subsidies -- even if the condition violates the institutions religious commitments. But that's not what the WCEA does. Alan Brownstein UC Davis At 02:37 PM 3/2/2004 -0600, you wrote: Brian raises an important question: I think Catholic Charities, like many religious institutions, will have to make a choice at this point, one that they have been pushed to by the law for the past three decades; do they want to continue receiving public monies, in which case they may have to describe themselves as secular organizations, or do they want to proclaim their religious character, get the exemption, and then lose the funding. (Alternatively, I suppose they could just drop drug coverage for their employees, but they claim that would be unjust.) My hope is that they will do the latter, with the unintended (?) consequence of the law being that a lot of disadvantaged people will lose support. (Unless funding is supplied by private donations...) Richard Dougherty University of Dallas Brian Landsberg wrote: The question posed was whether Catholic Charities were religion. If so, they would have qualified for an exemption from the rule. If they are a religion, as they insist, should that affect their eligibility to participate in state and federal programs? [EMAIL PROTECTED] 03/02/2004 6:20:00 AM Several postings have suggested that any accommodation that imposes a burden on third parties is unconstitutional. Why should this be so? A failure to accommodate burdens the rights of religious individuals or institutions. Why should there be an inflexible rule that where there are unavoidably burdens on one party or the other, the burdens must inevitably be borne by the religious side to the dispute? In this regard it should be noted that in the California case, the burden on Catholic Charities was one of principle, the burden on employees was merely financial (They had to pay for their own contraceptives; Catholic Charities was not firing persons who used contraceptives). What is it (except ,perhaps ,deference to the democratic process) that makes all seem to assume that even in this context, the burden on religion must yield to the secular burden? Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of [EMAIL PROTECTED] Sent: Tuesday, March 02, 2004 8:49 AM To: [EMAIL PROTECTED] Subject: Re: Locke v. Davey and expanded free exercise rights I think Alan has made an interesting point here. The footnote states that at least in some respects, [Washington's] constitution provides greater protection of relgious liberties than the Free Exercise Clause. First, I don't think it is unconstitutional for state constitutions, anymore than the First Amendment, to require strict scrutiny in certain circumstances, so long as there is an establishment principle at work as well. The goal is a balance of power between church and state, and that can be achieved via different calculations. There is no state that provides strict scrutiny in every circumstance under its state constitution, just as there was never a rule at the Supreme Court that strict scrutiny applied in every circumstance. It is beyond cavil that such a regime is intolerable. This footnote would have worried me had it spoken approvingly of a regime in which every law affecting religious entities is subject to strict scrutiny. Second, the footnote is speaking to judicially crafted interpretations of the free exercise clause. It does not speak to the proper conditions for legislative accommodation. Proper legislative accommodation requires a weighing of the special privilege to avoid the law against the harm to the public interest. The sort of blind accommodation at the base of RFRA and RLUIPA made it impossible for members of Congress to engage in this calculus. The failure to consider the public
RE: Potentially Important California State Case
Marci, I take it that you would have objected to the exemption in the Volstead Act for the religious use of wine. Can you defend that? I do not think that autonomy was the cause of the horrible abuse of thousands of children by Catholic priests and other religious. The problem was the failure of Bishops to put children ahead of priests. And this has precious little to nothing to do with exemptions from generally applicable laws. How do you know with such certainty what the public good is? Is it, for you, just a matter of what the majority in the legislature says? If so, why do we need a constitution with its messy antimajoritarian principles? For example, de jure racial discrimination might have been seen as in the public good by a majority of Americans once upon a time. So was the Court wrong in Brown? -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] Sent: Monday, March 01, 2004 7:37 PM To: [EMAIL PROTECTED] Subject: Re: Potentially Important California State Case Well, let me just say that I find Chip's and Bob's article on church autonomy posted today troubling. It was part of a church autonomy conference at BYU earlier this month. I will be posting my article for the conference on SSRN in the near future. I don't think the issues are obscure or complex. Rather, the public good is the only correct guiding principle in deciding whether generally applicable, neutral laws apply to religious institutional conduct, not whether religious groups should be shielded from the application of general laws. Belief, and therefore internal structure, may be protected, a la Reynolds and Smith, but there is no reason to give religious institutions special treatment relieving them from obligations under general laws. There is no philosophical or theological or legal theory that supports shielding religious groups in this way. It's all a hearkening back to the clergy privilege in England that rightfully was rejected eventually. Children are seriously, and I mean seriously, at risk under any version of church autonomy. Lipservice to children is not enough; the law must make it possible for them to be fully protected. An overreading of the Court's religious institution cases led the Catholic Church to believe it had a right to autonomy and therefore to some of its worst errors involving children in the last several decades. I totally agree with Marty on vaccinations. I also agree with Marty that the key with understanding RLUIPA is the assessment of harm on each side, and I find the assessments by the religious groups to be divorced from any consideration of the general public good. I find it amusing, though, that Marty would say that when state and local interests are important, they will prevail. The California RLUIPA bill that was killed proposed that many interests dear to the hearts of private homeowners can never be considered to be compelling. The push by those defending RLUIPA is to say that NOTHING satisfies the compelling interest test but the very RARE land use law. This is an attempt to takeover land use law for the benefit of religious groups, period. And I don't see the federal government's intervention in these cases muting that point at all. I wish it were otherwise. Marci n a message dated 3/1/2004 7:16:45 PM Eastern Standard Time, [EMAIL PROTECTED] writes: Well, I think I do agree with Marci on one thing: Among the worst, least defensible religious accommodations are exemptions for clergy for child abuse reporting and for medical neglect of children. Indeed, I've posted several times here that I think many religious exemptions from vaccination requirements are unconstitutional. Even here, however, the questions are often very complex. In the child-abuse setting, for example, see the questions examined with care in the extremely detailed and thoughtful draft article to which Chip Lupu linked earlier today. Marci's principal point -- and it's one for which I have a great deal of sympathy -- is that religious accommodations ought to be suspect if they impose significant costs on other private parties. I think the Court agrees with this, too -- see, e.g., Caldor, Hardison and Walsh. Indeed, it's difficult to find anyone who doesn't agree with this. Even Michael McConnell has written that a release-time program such as that at issue in Zorach would be unconstitutional if the nonparticipating students were inflicted with 'an entirely wasted hour of school.' The question on which Marci and her RLUIPA detractors primarily disagree is whether and to what extent RLUIPA imposes significant costs on neighbors of the religious properties. In my view, this is best viewed not as a debate about the constitutionality of RLUIPA itself, but instead as a dispute about its case-specific application. In cases where the state can demonstrate such harmful effects, it will prevail under the
Re: Locke v. Davey and expanded free exercise rights
Alan: That's very helpful. I didn't intend to suggest that Catholic Charities was being compelled to do anything in particular by the WCEA. Rather, I think CC (and many other groups) has consciously moved in the direction of identifying itself as not primarily a religious organization, providing religious assistance to religious adherents, etc., precisely in order to qualify for public funding. It falls outside the exemption, I take it, precisely because of that. Does the exemption not require that the organization see religious instruction as its end? (I don't have the law in front of me.) Would CC be exempt, then, only if it made clear that its goal in providing help with immigration, job training, etc., was primarily to provide that instruction? I'd appreciate some guidance here. BTW: the Texas proviso reads as follows: This article does not require a health benefit plan that is issued by an entity associated with a religious organization or any physician or health care provider providing medical or health care services under the health benefit plan to offer, recommend, offer advice concerning, pay for, provide, assist in, perform, arrange, or participate in providing or performing a medical or health care service that violates the religious convictions of the organization, except if the prescription contraceptive coverage is necessary to preserve the life or health of the insured individual. Richard Dougherty A.E. Brownstein wrote: The Women's Contraceptive Equity Act (WCEA) is not limited to organizations that receive state funds. Catholic Charities could refuse all state support and it would still have to comply with the WCEA. Further, the criteria employed by the Act to determine which religious organizations are exempt from the Act says nothing about government funding. I don't think there can be an exact equivalence between Establishment Clause prohibitions on state support and Free Exercise protection against government interference. An individual or organization may engage in some activities for religious reasons, receive free exercise protection for that choice, and still be eligible for state support. I think a soup kitchen affiliated with a Synagogue can receive funds from the state to feed the hungry and also have the free exercise right not to operate on Saturday or to maintain a Kosher kitchen. Do you disagree, Brian? I do agree that a religious organization that receives direct subsidies from the state must accept conditions accompanying those subsidies -- even if the condition violates the institutions religious commitments. But that's not what the WCEA does. Alan Brownstein UC Davis At 02:37 PM 3/2/2004 -0600, you wrote: Brian raises an important question: I think Catholic Charities, like many religious institutions, will have to make a choice at this point, one that they have been pushed to by the law for the past three decades; do they want to continue receiving public monies, in which case they may have to describe themselves as secular organizations, or do they want to proclaim their religious character, get the exemption, and then lose the funding. (Alternatively, I suppose they could just drop drug coverage for their employees, but they claim that would be unjust.) My hope is that they will do the latter, with the unintended (?) consequence of the law being that a lot of disadvantaged people will lose support. (Unless funding is supplied by private donations...) Richard Dougherty University of Dallas Brian Landsberg wrote: The question posed was whether Catholic Charities were religion. If so, they would have qualified for an exemption from the rule. If they are a religion, as they insist, should that affect their eligibility to participate in state and federal programs? [EMAIL PROTECTED] 03/02/2004 6:20:00 AM Several postings have suggested that any accommodation that imposes a burden on third parties is unconstitutional. Why should this be so? A failure to accommodate burdens the rights of religious individuals or institutions. Why should there be an inflexible rule that where there are unavoidably burdens on one party or the other, the burdens must inevitably be borne by the religious side to the dispute? In this regard it should be noted that in the California case, the burden on Catholic Charities was one of principle, the burden on employees was merely financial (They had to pay for their own contraceptives; Catholic Charities was not firing persons who used contraceptives). What is it (except ,perhaps ,deference to the democratic process) that makes all seem to assume that even in this context, the burden on religion must yield to the secular burden? Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of [EMAIL PROTECTED] Sent: Tuesday, March 02, 2004 8:49 AM To:
Re: Potentially Important California State Case
Marci, I take it that you would have objected to the exemption in the Volstead Act for the religious use of wine. Can you defend that? As I have stated many times, I think the peyote exemption is perfectly fine, and I don't see much difference here. The religious use of wine in the amounts used for religious purposes can hardly be said to be a public health threat. I do not think that autonomy was the cause of the horrible abuse of thousands of children by Catholic priests and other religious. The problem was the failure of Bishops to put children ahead of priests. And this has precious little to nothing to do with exemptions from generally applicable laws. I deeply disagree. The entire culture fostered the Catholic Church's culture of child abuse. Prosecutors knew of cases but did not prosecute because the Church said it would take care of it itself. Parents complained to priests and bishops, but not to prosecutors. Many states did not require the reporting of child abuse by clergy, though they required the identical reporting by psychiatrists, social workers, and doctors. The Church played on and perpetuated a culture of secrecy that rested on a concept of autonomy from the public good. Finally, the value of children till very recently has been quite low. Children don't vote, so when their interests were compromised in the legislative and executive process, there was little recourse. That is thankfully changing. How do you know with such certainty what the public good is? Is it, for you, just a matter of what the majority in the legislature says? If so, why do we need a constitution with its messy antimajoritarian principles? For example, de jure racial discrimination might have been seen as in the public good by a majority of Americans once upon a time. So was the Court wrong in Brown? The public good is an evolving concept. Brown was correct, just like the Court's evolving free exercise jurisprudence, which is opening the door to more liberty for those who have been oppressed in the name of relgious "liberty." Primarily children. As a matter of institutional competence, the legislature is in a far better position to weigh and study the public good than a court that is limited to the facts produced by particular parties. In a republican democracy, a legislature is not a majoritarian institution, but rather free to do what is right, regardless of what the people, the majority want. The Framers rejected a right to instruct to give representatives the latitude to do what is in the public interest, which is never necessarily equal to what the public thinks it wants. Regards, Marci ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
