Re: Re-upping: Sterling: A helpful test case on RFRA burdens

[Marc DeGirolami]

For whatever it’s worth, I have argued recently that the substantial burden 
inquiry should be governed by something like a requirement that the claimant 
come forward with some evidence to explain how the religious exercise fits into 
a “system” of religious belief and practice. That showing would and should, in 
my view, be evaluated generously toward the claimant. But it would be 
something. Even the text of RLUIPA, while ostensibly disclaiming centrality 
inquiry, itself speaks in terms of a “system of religious belief.”

https://papers.ssrn.com/sol3/papers2.cfm?abstract_id=2791527


From: Marty Lederman 
>
Reply-To: Law & Religion issues for Law Academics 
>
Date: Monday, February 20, 2017 at 3:05 PM
To: Marty Lederman >
Cc: Law & Religion issues for Law Academics 
>
Subject: Re-upping: Sterling: A helpful test case on RFRA burdens

Now that Paul Clement has filed a cert. 
petition
 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.  To recap the 
very straightforward facts:

1.  Marine Corps Lance Corporal Monfia Sterling posted three identical signs in 
her workspace, each containing only the words “No weapon formed against me 
shall prosper”--two of them in large (28-point) font.  The statement derives 
from Isaiah 54:17.  She posted one sign on the side of her computer tower, one 
above her computer screen, and one above her desk mailbox. The signs were large 
enough for those walking by her desk, and Marines seated at her workspace, to 
read.

2.  Her superior officer insisted that she take the signs down; indeed, that 
officer threw her signs in the trash, and she continued to repost them.  
Therefore Sterling was court-martialed for insubordination, and sentenced to a 
bad-conduct discharge and a reduction in pay grade--no small thing in terms of 
sanctions.  As far as the record shows, her superior officer was not motivated 
by the fact that the signs were, or Sterling was, religious--he would have done 
the same no matter what the employee's motivation was, and no matter whether 
the signs were scriptural.

3.  Sterling testified that the signs had religious significance to her, and 
that she posted them in response to difficulties she was experiencing at work.  
They were, she testified, a "mental reminder” to her and that she did not 
intend to “send a message to anyone” else.  Paul's petition asserts, without 
citation to the record, that "[t]he conduct at issue was an undisputed exercise 
of religion by LCpl Sterling to beseech a higher power for spiritual strength 
and fortitude in the face of challenges."  Although there's no evidence that 
Sterling intended any "beseeching," I think it's fair to say that she did 
intend to invoke the words of a higher power "for spiritual strength and 
fortitude in the face of challenges."  Sterling did not testify, or otherwise 
claim, however, that her religion mandated that she post the signs, or that it 
was a common practice or tenet of her religion.  More to the point, she 
apparently did not testify about whether or why posting the signs was important 
to her, or a significant part of her religious exercise.  She did not, for 
example, explain why it would not have been just as effective for her to post 
the signs in smaller font that others would not notice, or to use other means 
of "mentally reminding" herself.

The Court of Appeals for the Armed Forces held that Sterling had failed to meet 
her RFRA burden because she did not establish either the "subjective importance 
of the conduct" to her religious exercise, or that such posting was a “tenet” 
or "precept” of her faith.

My question:  Can it really be the case that Sterling has established a 
"substantial burden" on her religious exercise, without any evidence at all of 
how or why the posting of the bible verse at her desk, in a font big enough for 
bystanders to see, was at all important to her religious commitments or 
exercise?

According to Paul Clement's petition, an inquiry into the "subjective 
importance" of the practice to the plaintiff is not only unnecessary under 
RFRA, but constitutionally prohibited--it "took the CAAF to a place no secular 
court is equipped or authorized to go."  "[A]ny sensible interpretation of the 
Religion Clauses must forswear a judicial inquiry into the 'subjective 
importance' of a religious practice."

I'm genuinely curious:  What do others think of this argument?  

Re: Eugene's Blog Post on Liberals and Exemption Rights

[Marc DeGirolami]

Micah, nobody I know who is resisting the third party Establishment Clause 
theory that you, Nelson, and others have created based on “the general form” of 
a constitutional limit on religious accommodation. RFRA  incorporates the 
general form of such a limit.

Marc


From: Micah Schwartzman mj...@virginia.edumailto:mj...@virginia.edu
Reply-To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Date: Thursday, April 2, 2015 at 1:40 PM
To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights

Rick,

In Hobby Lobby, the majority says: It is certainly true that in applying RFRA 
“courts must take adequate account of the burdens a requested accommodation may 
impose on nonbeneficiaries.” Cutter v. Wilkinson, 544 U. S. 
709http://www.law.cornell.edu/supremecourt//text/544/709, 720 (2005) 
(applying RLUIPA). That sentence quoted from Cutter relies on Caldor. These are 
both Establishment Clauses cases articulating a limit on permissive 
accommodations.

We can argue about the scope of that limit, but as Nelson said earlier, it is 
surprising to see such resistance to even the general form of it.

Micah

On Apr 2, 2015, at 10:33 AM, Rick Garnett 
rgarn...@nd.edumailto:rgarn...@nd.edu wrote:

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.edumailto:rgarn...@nd.edu



To download my scholarly papers, please visit my SSRN 
pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235



Blogs:



Prawfsblawghttp://prawfsblawg.blogs.com/
Mirror of Justicehttp://mirrorofjustice.blogs.com/



Twitter:  @RickGarnetthttps://twitter.com/RickGarnett

On Wed, Apr 1, 2015 at 7:07 PM, Nelson Tebbe 
nelson.te...@brooklaw.edumailto:nelson.te...@brooklaw.edu wrote:


Thanks, Alan. Speaking again only 

Re: Simple Hobby Lobby question

[Marc DeGirolami]

It’s a quite minor and likely unimportant point in this particular exchange, I 
admit (unfortunately these are my specialty), but I would like to second Mark’s 
remark in the final paragraph of his comment below that animadversive analogy 
to Lochner may perhaps be inapt in this context. I take it that the crucial 
criticism of Lochner has to do with its dependence on unenumerated 
rights—constitutional or otherwise. That ought to be enough to drive a pencil 
through the heart of the analogy, unless one is prepared to resuscitate it with 
lots and lots of argument.

With best wishes,

Marc

From: Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu
Reply-To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Date: Thursday, June 12, 2014 at 12:02 AM
To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Simple Hobby Lobby question

Prof. Greenwood overstates the protection corporation law gives to officers and 
directors from civil liability, whether or not they are shareholders. Apart 
from cases in which the law makes them directly responsible for the 
corporation's obligations (e.g., responsible person liability for unpaid 
withholding taxes), officers and directors generally are, as I understand the 
matter, liable for their own tortious actions even if performed as agents of 
the corporation. That is true for shareholders who actively participate in the 
corporation's activities and who use the corporate form in part for the benefit 
of limited liability. The principle of limited liability protects shareholders 
and officers and directors from liability for the acts of other agents of the 
corporation, but not for their own. The major protection is from liability for 
torts committed by other agents (e.g., the truck driver who negligently runs 
over a pedestrian) and from liability on contracts (though often the other 
party will insist on a personal guaranty of performance, as with many loan 
agreements). For a simple discussion of this from a California point of view, 
see http://www.centurycitybar.com/newslettertemplate/April11/article3.htm.

Of course, the issue here is moral responsibility, not legal responsibility. 
But it's still important to see that the use of the corporate form is not the 
get out of jail free card that it is being portrayed as.

Prof. Greenwood's use of terms like theft and fraud is not helpful in 
moving our discussion forward, nor is his invocation of that boogeyman of the 
law -- Lochner. And the business judgment rule has nothing to do with 
obligations to third parties, as opposed to potential liability to the 
corporation itself and to its shareholders

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my iPad

On Jun 11, 2014, at 1:58 PM, Daniel J. Greenwood 
daniel.greenw...@hofstra.edumailto:daniel.greenw...@hofstra.edu wrote:


I think this is not a correct statement of corporate law.



The owners of a closely held corporation are morally responsible for the 
corporation's actions.  After all, the shareholders (or the trustees) are the 
voters for the board that is the corporation's ultimate decisionmaker, and if 
the shareholders are able to act unanimously, they can call an election at any 
time, so that, functionally if not legally, the directors serve at their 
pleasure.  So the Greens are correct to feel responsible for Hobby Lobby's 
actions in their beneficiary of the shareholder trust role.  (If I understand 
the facts correctly, they are also directors of the firm.  In that role, they 
have actual control, within the constraints of fiduciary duty, and certainly 
are morally responsible for their actions.)



However, the main point of corporate status is that the shareholders are not 
legally responsible for the corporation's actions. This is almost certainly why 
the Greens chose to organize the firm as a corporation.  If Hobby Lobby poisons 
its customers or employees or neighbors, or if it attempts to sell products 
that no one is willing to buy, the shareholders have no legal obligation at 
all.  The corporation, to be sure, is liable for its torts and contracts.  But 
if the default is large enough to leave the corporation insolvent, the victims 
are out of luck.  The shareholders have no obligation to pay corporate 
obligations, to fund the corporation adequately, to replenish its capital or to 
return dividends or other payments it may have made to them in the past 
(assuming they were proper when made).



Moreover, the shareholders, as shareholders, have no responsibility at all for 
the actions of directors they elected or employees the directors hired, even if 
the shareholder knew, or should have know, the directors were acting in 
violation of their fiduciary duties.



The only time the shareholders are legally responsible for the corporation's 
actions is if they disregard 

Re: Notre Dame-- where's the complicit participation? Sincerity

[Marc DeGirolami]

With respect, I do not understand the comment below about the “complicity” of 
legal academics in the legal wrongs perpetrated by religious institutions, or 
any institutions, that they study and think about. I am assuming that the 
institutions are engaged in legal wrongs in the cases we are now talking about 
(Notre Dame and Hobby Lobby), which is the assumption from which I’ll proceed 
for purposes of this comment.

First, what is the meaning of “complicity” in this context? Is it a meaning 
like the meaning being pressed in the lawsuits—a religious meaning? Is it a 
meaning derived from criminal law—as in accomplice liability? I am not 
suggesting that anybody believes that law professors are criminally complicit; 
probably the statement refers to moral complicity. But that still leaves the 
problem of understanding the meaning of the word here. In criminal law, 
complicity generally requires sharing the purpose of the wrongdoer, or perhaps 
taking a view with the intention that it will enable or encourage the wrongdoer 
to continue doing wrong. If it is another meaning, what is it?

Second, assuming the meaning is something approaching shared purpose, I do not 
understand how legal academics, by discussing various issues on a listserv or 
elsewhere and thinking through them, and (so far as I can see) disagreeing with 
one another, are complicit in the wrongdoing of the subjects that they study. 
It would be very unusual (and certainly not reflective of the ethos on the 
criminal law listserv to which I also subscribe) to describe a scholar of 
criminal law as complicit in the wrongdoing of a criminal defendant by taking 
positions that are protective of his rights under, e.g., the Fourth Amendment 
or the Sixth Amendment or a statute, notwithstanding overwhelming evidence of 
his guilt. Similarly, in evidence, there are all sorts of presumptions and 
privileges that work to protect people’s rights, sometimes at the expense of 
other values related to the question of liability or culpability. In other 
areas of law, legal scholars understand that evidence of guilt or liability is 
not the only thing that matters, and that there are limits beyond which a 
civilized society is not prepared to go because to do so would sacrifice other 
important values. This area should not be different. And law professors, in 
order to do what they have professional obligations to do (which does not 
include being original), need to be able to talk about and work through 
positions without the fear of being branded as themselves perpetrators of civil 
or criminal wrongs whose culpability is derived from the positions that they 
take with respect to the subjects that they study.

Best, Marc

From: Paul Horwitz phorw...@hotmail.commailto:phorw...@hotmail.com
Reply-To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Date: Saturday, February 15, 2014 at 9:43 AM
To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Cc: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu, 
kurtla...@gmail.commailto:kurtla...@gmail.com 
kurtla...@gmail.commailto:kurtla...@gmail.com
Subject: Re: Notre Dame-- where's the complicit participation? Sincerity

1) I was unaware there was such an ethos. It does not seem to be a terribly 
strong one.
2) Yes, churches, religious institutions, and indeed all other institutions, 
including law schools, liberal nonprofits, and so on are subject to 
institutional incentives and should be subject to institutional analysis. That 
analysis should be neither supportive nor antagonistic.
3) The double negatives in the sentence about taboos were slightly confusing. I 
take it your view is that scholars ought not buy into taboos of any kind, 
regardless of whether they support the so-called powerful or the so-called 
powerless; if so, I agree with you. Whether to protect the powerful or the 
powerless is an important moral premise on which one might base other 
activities; it is not a scholarly premise or duty. There is a famous quote that 
the purpose of journalism is to afflict the comfortable and comfort the 
afflicted. That statement is wrong about journalism, and certainly would be 
wrong about scholarship.
4) Personal conduct showing use of contraceptives may conceivably be relevant 
to questions of sincerity in some cases. It is far from dispositive, especially 
for purposes of the courts.

Sent from my iPad

On Feb 15, 2014, at 8:31 AM, hamilto...@aol.commailto:hamilto...@aol.com 
wrote:

Marty raises a critical issue in religion clause scholarship.   Why is it that 
scholars should not question Notre Dame's sincerity and should bend over 
backward to assume good faith?   I understand politically why legislators do 
it (though I think it is a gross dereliction of duty to the vulnerable and 
their obligations to be neutral toward 

Re: Warner v. City of Boca Raton

[Marc DeGirolami]

I agree with these points. I would also add that there are many ambiguities and 
uncertainties in a test like that announced in Employment Division v. Smith, 
both because of the express carve-outs within Smith itself (whatever their 
motivation) and because of implicit questions about legislative intention that 
are features (not bugs) of many other laws. The ambiguities in putatively 
clear, bright line rules also at times have the effect of making one's 
perception of the rule-like quality of the rule outrun its reality.

Best wishes,

Marc

From: Paul Horwitz phorw...@hotmail.commailto:phorw...@hotmail.com
Reply-To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Date: Tuesday, December 3, 2013 11:38 AM
To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Warner v. City of Boca Raton

Hopefully this is not ad hominem! I don't see anything unique about this in 
RFRA. It is a standard concern with any legal test that involves the use of 
standards, balancing, and other questions of judicial application in the case. 
It is true of vast swaths of constitutional law and common law. See, e.g., 
Posner's discussion in Reflections on Judging of the difficulties of framing 
legal tests given the plasticity and imprecision of language. It is what leads 
some legal thinkers--but not Posner, in all cases--to favor the use of rules 
and formalism. But it's not unique to religion, religious freedom, or RFRA.

To this I would add that 1) rules and formalism front-load but do not eliminate 
the problem of judicial discretion; 2) although the problem Marci raises is 
quite genuine, not everyone agrees that eliminating balancing or judicial 
discretion root and branch are necessary and indefeasible elements of whatever 
the rule of law is; 3) whether rules or standards are preferable in 
particular areas is better analyzed, in my view, as a matter of pragmatic 
weighing and institutional analysis than by invoking the charged and protean 
terms of the rule of law; and 4) whether such decisions constitute a violation 
of the oath is contestable for similar reasons, and we're better off just 
asking whether particular decisions are right or wrong given the legal and 
factual materials in play. (Just as we would in asking whether, say, a court 
soundly decided a case involving a clear and present danger or proximate cause 
or reasonable person inquiry).

Regards,

Paul Horwitz

On Dec 3, 2013, at 10:13 AM, Marci Hamilton 
hamilto...@aol.commailto:hamilto...@aol.com wrote:

I find it interesting that Doug concedes in this thread that results in RFRA 
cases turn on the judge's predilections on religious liberty regardless of the 
law's language.  I have witnessed this lack of neutrality in several cases, 
most notably the ruling by Judge Randa in the Milwaukee bankruptcy case.  (Full 
disclosure-- I represent the creditors' committee composed mostly of sex abuse 
victims in that case.)

RFRA seems to invite a lack of neutrality despite its language saying the 
Establishment Clause is to be unaffected.   The results as described by Doug 
and Chris strike me as involving judges who are being encouraged to and who do 
violate the Establishment Clause and their code of judicial ethics. I am 
interested in others thoughts on this.

I would appreciate no ad hominem responses to these factual observations.

Marci

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton



On Dec 3, 2013, at 10:46 AM, Douglas Laycock 
dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote:


Michael cites Warner v. Boca Raton, 887 So.2d 1023 (Fla. 2004), as an example 
of a case where the word “substantially” was critical to the result. And that 
is what the court says. But it is quite obviously not true.



The Florida court read “substantially” to mean that only those practices that 
were required by a faith were protected by Florida RFRA. The Florida 
legislature had attempted to specifically negate any such requirement, as the 
court recognized. The statute defined “exercise of religion” as “an act or 
refusal to act that is substantially motivated by religious belief, whether or 
not the religious exercise is compulsory or central to a larger system of 
religious belief.” The Florida court’s interpretation of “substantially burden” 
negated this definition and read back into the statute a requirement that 
religious exercise be compulsory to be protected. The statutory definition of 
religious exercise will never again matter to a Florida RFRA case; only a 
subset of religious exercise as defined will ever be protected. This opinion is 
plainly driven not by the word “substantially,” but by the court’s disagreement 
with the scope of the statute. Full disclosure: I argued the case for the 
plaintiffs.



Here is what the court said about the statutory definition, just before 

Book

[Marc DeGirolami]

I hope you will indulge a brief note about the recent publication of my book, 
The Tragedy of Religious 
Freedomhttp://www.hup.harvard.edu/catalog.php?isbn=9780674072664content=book.

Please let me know if you have an interest in reviewing (or, for that matter, 
just in reading) it, and I will do my best to get it to you.

Best wishes,

Marc
___
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.

RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden

[Marc DeGirolami]

Chip raises a problem I've been having a hard time understanding too.  A 
burden does seem to imply the willingness to suffer to some unspecified 
degree (rising to the level of being substantial) on behalf of the claimed 
belief.  On the specific question of whether one should interpret the adjective 
substantial to require some sort of material burden, I believe that this is 
what the ED of Missouri court means when it says that the claimant must be 
willing to forfeit a benefit, pay a fine, or even face criminal prosecution 
(though I do not believe that the cases cited for this proposition support the 
view that this is a necessary condition).  One might interpret this statement 
as a requirement that the plaintiff must be willing to suffer *at least* one of 
these three kinds of penalties in order for the burden to be substantial, or 
maybe to suffer at least some sort of penalty period (again provided that the 
penalty is substantial).  It's difficult for me to see that we would want to 
test the religious liberty claim in all cases against a willingness to go to 
prison, for example (Chip writes about a related issue in his Failure of RFRA 
piece, I think).

But even if we thought that willingness to pay a fine would be a good test for 
substantiality (which I'll admit doesn't seem unreasonable to me, in some 
cases), I wonder about how this would work in practice.  That is, how would we 
know that the plaintiff was really willing to pay a fine rather than be forced 
to do something alleged to violate religious conscience?  What would be the 
proof?

I'll add that I am genuinely confused about the issue of substantiality of the 
burden, because it does seem to me to require more than something like 
subjective sincerity, but also to forbid courts from inquiring into the 
importance of the belief, or the degree to which the belief has been ratified 
by other religious adherents.  If that is right, then what is left to determine 
the substantiality of the burden other than the degree to which the claimant is 
willing to suffer for his or her beliefs?

Marc


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Tuesday, October 02, 2012 11:10 AM
To: Law  Religion issues for Law Academics
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting substantial burden

The formal findings in RFRA reference Sherbert and Yoder, but not Thomas.  
Significant?

Should Thomas even apply to artificial persons, like holding companies, 
corporations, and religious non-profits?  Shouldn't they be required to 
articulate with clarity and precision just how their religious exercise is 
burdened?

I have not yet seen a reply to Bob Ritter's very good question about what work 
is being done by the word substantial in RFRA. It has to mean something.  
Does it refer to material burdens (e.g., one must pay a fine of $X if one 
insists on compliance with one's own religious conscience)?  Or does it refer 
to the religious substantiality of the burden?

The list appears to divide into two groups on this burden question.  One one 
side, the claimant gets to self-declare, and that triggers the strict scrutiny 
of RFRA.   That seems to wildly over-enforce religious freedom.  Consider the 
religiously idiosyncratic and libertarian employer who objects to FLSA, OSHA, 
Title VII, etc.

On the other side, the government lawyers and courts get to second-guess and 
decide what someone's religion really requires, and what kind of burden on that 
is presumptively too great to force the claimant to endure.  That seems 
unconstitutional (see Hosanna-Tabor and other decisions on Establishment Clause 
limits on the state's resolving internal religious questions).

 Chip


___
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.

RE: Court Rejects Religious Liberty Challenges To ACA Mandate

[Marc DeGirolami]

I wonder what sort of evidence Marty is looking for.  What arguments qualify as 
serious arguments?  And serious for whom?  A serious argument is not 
necessarily an argument that one finds persuasive, though that might be the 
standard.  It could instead be an argument that one disagrees with but that one 
finds plausible.  Or perhaps not outrageous.  Or is it instead one which the 
religious claimant takes seriously, even if the court does not?  How should 
one measure the standard for seriousness?

The standard that RFRA sets is not whether a court believes that the argument 
raised by the objecting religious claimant is serious.  It is whether the 
claimant has alleged a substantial burden.  Alleging a substantial burden does 
not require that the court gauge the seriousness of the objector, or his or her 
objection, or the degree to which the argument has achieved theological 
consensus, or its importance or centrality within the overarching system of 
belief.  It does not demand the assent of a selection of theologians.  After 
all, other theologians, at other conferences, surely would disagree with the 
conclusions of the theologians at Marty's conference, but I take it that their 
feelings are also not the gauge by which we measure whether a burden is 
substantial.

One possibility is to demand some sort of pain threshold, as the Missouri court 
intimates, going so far as to suggest (in what I believe is a misreading of 
Wisconsin v. Yoder) that suffering a substantial burden may even require a 
willingness to suffer criminal prosecution.  Putting aside the objection that 
there is of course a difference between a necessary condition and a sufficient 
condition, would the argument become a serious argument if the owner of the 
company would prefer to be prosecuted rather than to comply?  Or to prefer to 
pay a fine?  Or does the seriousness of the argument not depend at all on the 
degree of suffering that the claimant is willing to endure?

Marc

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Sunday, September 30, 2012 12:57 PM
To: Law  Religion issues for Law Academics
Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate

My post bounced, apparently because of the number of recipients!  Resending 
without so many cc's.  Sorry for any duplicate receipts.
On Sun, Sep 30, 2012 at 12:52 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:
For what it's worth, at our Georgetown Conference on this issue last week (a 
video of which should be posted soon), there appeared to be a great deal of 
skepticism among the Catholic theologians and other scholars present (some of 
whom I am copying here, along with some others at the conference) that where an 
employer provides employees with access to a health-insurance plan on 
compulsion of law; the services in question are part of the plan virtue of 
legal mandate; and the use of the plan to pay for any particular heath care 
service is entirely within the discretion of the employee and her physician, 
the employer does not thereby engage in material cooperation with evil just 
because some employees might choose to use the plan (unbeknownst to the 
employer) to subsidize the use of contraception.

I am hardly an expert in such questions of Catholic doctrine; but I, for one, 
have yet to see any serious argument from those objecting to the Rule that 
compliance would result in a violation of religious obligations on account of 
such cooperation.  That doesn't mean there is no such argument out there, of 
course.  But I think it helps to explain in part why plaintiffs in most of 
these cases have thus far not articulated a theory of substantial burden based 
on cooperation-with-evil, and why some courts are so skeptical of the 
allegation of a substantial burden -- namely, that such arguments appear to 
prove far too much w/r/t an employer who does not raise a similar objection to 
the inevitable use of its salary payments and taxes (via the intervention of 
genuinely independent choice on the part of the state or other private parties) 
for numerous forms of conduct that the employer deems to be wrongful.

Doug (and others):  I would be extremely grateful for any citations to Jewish 
or other non-Catholic treatments of this issue of cooperation with evil, thanks.

Mark S.:  You appear to place a good deal of stress on the fact that 
contraception is specifically mentioned in the health-insurance plans in 
question, whereas of course it is not specifically mentioned in the laws 
requiring employers to pay taxes and salaries, even though everyone knows that 
such taxes and salaries will be used in part to pay for contraception.  What 
difference does that specification make from a Catholic moral perspective?  To 
the extent you're suggesting that the inclusion of the words contraceptive 
services in the insurance plan might be understood by 

RE: Providing public school credits for release-time religious classes

[Marc DeGirolami]

One conceivable difficulty is the entanglement problem.  When a student 
transfers in to public school from a religious school, there may be several 
different sorts of courses that the student will have taken which may combine, 
in various degrees, religious and secular components.  I'm not sure I agree 
with Marty that it is always the case that the transferred credits are awarded 
solely for purely secular courses.  Segregating out the secular and religious 
components can be difficult.  And getting the school district involved in 
determining which are purely secular, and which are mixed, and which are purely 
religious, might risk excessive entanglement.

Having said that, I agree that awarding credits for, e.g., CCD class or 
equivalent education is problematic.

Marc

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, June 30, 2012 9:58 AM
To: Law  Religion issues for Law Academics
Subject: Providing public school credits for release-time religious classes

www.ca4.uscourts.gov/Opinions/Published/111448.P.pdfhttp://www.ca4.uscourts.gov/Opinions/Published/111448.P.pdf

A South Carolina school district set up a Zorach-like release time program for 
religious instruction at an unaccedited religious school.  Then it decided to 
give the participating students academic credit for their purely religious 
studies in the release-time program.  The Fourth Circuit upholds this program, 
on the theory that it's no different from recognizing credits from a private, 
accredited religious school when a student transfers to the public school.  But 
in that latter case (or in the related context of giving credit for 
home-schooling), the credits presumably are awarded based upon the showing or 
the presumption that they reflect the student's completion of the necessary 
secular curriculum.  Here, the education in question is specifically religious 
in nature (that's the point, and there's no indication in the opinion of any 
secular content).  That is to say, the credit is being offered for the 
religious education simplicitur.

Is this holding defensible?  On Mirror of Justice, Rick Garnett calls it 
welcome, but it's not obvious to me why that might be so.
___
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.

RE: Providing public school credits for release-time religious classes

[Marc DeGirolami]

Thanks, Marty.  I think we are agreeing on the basics, but I guess I am less 
certain about the nature of the course at issue here.  You are right that the 
course is described as a Christian Worldview class, but the content is never 
really discussed.  As you point out, a different, accredited, religious school 
was asked to review the curricular heft of the course and here is what the 
court says about that:

Following the School District's preference, Spartanburg
Bible School entered into an arrangement with Oakbrook Preparatory
School, an accredited private Christian school, by
which Spartanburg Bible School could submit its grades
through Oakbrook to Spartanburg High School. Under the
arrangement, Oakbrook agreed to review and monitor Spartanburg
Bible School's curriculum, its teacher qualifications,
and educational objectives, and to award course credit and
grades given by the Bible School before transferring them to
Spartanburg High School. In carrying out the arrangement,
Oakbrook reviewed syllabi, spoke with instructors, suggested
minor curricular adjustments, and satisfied itself that the Spartanburg
Bible School course was academically rigorous.

The finding by the accredited religious school that the program offered by SBS 
was academically rigorous strikes me as susceptible of a few possible 
readings, at least some of which suggest a mixture of secular and religious 
components.  Part of the difficulty is, of course, in maintaining the 
conceptual purity of these categories.

Marc

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, June 30, 2012 10:26 AM
To: Law  Religion issues for Law Academics
Subject: Re: Providing public school credits for release-time religious classes

I generally agree, Marc. The public school in the hypothetical transfer case, 
partly in order to avoid entanglement (especially when dealing with classes 
that might teach secular subjects with some degree of religious perspective), 
basically presumes that the cumulative credits received from the private school 
reflect the fact that the accredited school has taught the student the relevant 
secular material.  But here, the whole point of the release time is for the 
student to be able to receive what the statute expressly refers to as 
religious instruction -- in this case, a Christian worldview class; and 
there's no hint in the opinion that the class is supposed to provide the 
student with any of the secular education she is missing during the release 
time.  Therefore I'm with you -- it's problematic; indeed, strikes me as flatly 
unconstitutional.

On Sat, Jun 30, 2012 at 10:13 AM, Marc DeGirolami 
marc.degirol...@stjohns.edumailto:marc.degirol...@stjohns.edu wrote:
One conceivable difficulty is the entanglement problem.  When a student 
transfers in to public school from a religious school, there may be several 
different sorts of courses that the student will have taken which may combine, 
in various degrees, religious and secular components.  I'm not sure I agree 
with Marty that it is always the case that the transferred credits are awarded 
solely for purely secular courses.  Segregating out the secular and religious 
components can be difficult.  And getting the school district involved in 
determining which are purely secular, and which are mixed, and which are purely 
religious, might risk excessive entanglement.

Having said that, I agree that awarding credits for, e.g., CCD class or 
equivalent education is problematic.

Marc

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Marty Lederman
Sent: Saturday, June 30, 2012 9:58 AM
To: Law  Religion issues for Law Academics
Subject: Providing public school credits for release-time religious classes

www.ca4.uscourts.gov/Opinions/Published/111448.P.pdfhttp://www.ca4.uscourts.gov/Opinions/Published/111448.P.pdf

A South Carolina school district set up a Zorach-like release time program for 
religious instruction at an unaccedited religious school.  Then it decided to 
give the participating students academic credit for their purely religious 
studies in the release-time program.  The Fourth Circuit upholds this program, 
on the theory that it's no different from recognizing credits from a private, 
accredited religious school when a student transfers to the public school.  But 
in that latter case (or in the related context of giving credit for 
home-schooling), the credits presumably are awarded based upon the showing or 
the presumption that they reflect the student's completion of the necessary 
secular curriculum.  Here, the education in question is specifically religious 
in nature (that's the point, and there's no indication in the opinion of any 
secular content).  That is to say, the credit is being offered for the 
religious education

RE: Providing public school credits for release-time religious classes

[Marc DeGirolami]

 to our conclusion is the governing principle

that private religious education is an integral part of the

American school system. Indeed, States are constitutionally

obligated to allow children and parents to choose whether to

fulfill their compulsory education obligations by attending a

secular public school or a religious private school.
See Pierce

v. Soc'y of Sisters
, 268 U.S. 510, 534-35 (1925). It would be

strange and unfair to penalize such students when they

attempt to transfer into the public school system by refusing

to honor the grades they earned in their religious courses,

potentially preventing them from graduating on schedule with

their public school peers. Far from establishing a state religion,

the acceptance of transfer credits (including religious

credits) by public schools sensibly
accommodates the genuine

choice among options public and private, secular and religious.

Zelman v. Simmons-Harris
, 536 U.S. 639, 662 (2002)

(upholding an Ohio voucher initiative for this reason).
The court was careful to note that the school district had not encouraged 
students to participate or inappropriately endorsed religion.  Like Marc, I can 
imagine some abuses, and hard cases, but this one does not seem (to me) to be 
one.

Best,

Rick

Richard W. Garnett
Professor of Law  Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, IN  46556-0780

574-631-6981tel:574-631-6981 (office)
574-631-4197tel:574-631-4197 (fax)


From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Marc DeGirolami 
[marc.degirol...@stjohns.edumailto:marc.degirol...@stjohns.edu]
Sent: Saturday, June 30, 2012 10:13 AM

To: Law  Religion issues for Law Academics
Subject: RE: Providing public school credits for release-time religious classes
One conceivable difficulty is the entanglement problem.  When a student 
transfers in to public school from a religious school, there may be several 
different sorts of courses that the student will have taken which may combine, 
in various degrees, religious and secular components.  I'm not sure I agree 
with Marty that it is always the case that the transferred credits are awarded 
solely for purely secular courses.  Segregating out the secular and religious 
components can be difficult.  And getting the school district involved in 
determining which are purely secular, and which are mixed, and which are purely 
religious, might risk excessive entanglement.

Having said that, I agree that awarding credits for, e.g., CCD class or 
equivalent education is problematic.

Marc

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Marty Lederman
Sent: Saturday, June 30, 2012 9:58 AM
To: Law  Religion issues for Law Academics
Subject: Providing public school credits for release-time religious classes

www.ca4.uscourts.gov/Opinions/Published/111448.P.pdfhttp://www.ca4.uscourts.gov/Opinions/Published/111448.P.pdf

A South Carolina school district set up a Zorach-like release time program for 
religious instruction at an unaccedited religious school.  Then it decided to 
give the participating students academic credit for their purely religious 
studies in the release-time program.  The Fourth Circuit upholds this program, 
on the theory that it's no different from recognizing credits from a private, 
accredited religious school when a student transfers to the public school.  But 
in that latter case (or in the related context of giving credit for 
home-schooling), the credits presumably are awarded based upon the showing or 
the presumption that they reflect the student's completion of the necessary 
secular curriculum.  Here, the education in question is specifically religious 
in nature (that's the point, and there's no indication in the opinion of any 
secular content).  That is to say, the credit is being offered for the 
religious education simplicitur.

Is this holding defensible?  On Mirror of Justice, Rick Garnett calls it 
welcome, but it's not obvious to me why that might be so.

___
To post, send message to 
Religionlaw@lists.ucla.edumailto: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

CLR Forum

[Marc DeGirolami]

Dear listserv members,


I am pleased to announce the launch of CLR Forumhttp://clrforum.org/, the new 
on-line resource of the Center for Law and 
Religionhttp://www.stjohns.edu/academics/graduate/law/academics/centers/lawreligion
 (CLR) at St. John’s University School of Law.  CLR Forum is a source of 
information and commentary for scholars and others who are interested in law 
and religion.  It offers the following features:



 *   Scholarship Rounduphttp://clrforum.org/category/scholarship-roundup/ -- 
a comprehensive compilation of new law and religion scholarship, including:



Articleshttp://clrforum.org/tag/articles/ – recently published U.S., foreign, 
and comparative articles;



  Bookshttp://clrforum.org/tag/books/ – the newest books in law and 
religion; and



Conferenceshttp://clrforum.org/tag/conferences/ – a list of upcoming 
conferences.



 *   Commentaryhttp://clrforum.org/category/commentary/ by members of the 
CLR, including its student fellowshttp://clrforum.org/people/fellows/, on law 
and religion issues in the news and around the web.


 *   Linkshttp://clrforum.org/links/ – a helpful list of links to law and 
religion research centers, blogs, and religion news sites.


 *   Programshttp://clrforum.org/events/ of the CLR, as well as 
Publicationshttp://clrforum.org/publications/ of CLR faculty.



To  find out more about CLR Forum, click herehttp://clrforum.org/home/ for a 
message from the CLR’s director, Mark 
Movsesianhttp://clrforum.org/people/mark-l-movsesian/.  You can also follow 
CLR Forum on 
Facebookhttp://www.facebook.com/pages/Center-for-Law-and-Religion-at-St-Johns-University-School-of-Law/219237501430509#!/pages/Center-for-Law-and-Religion-at-St-Johns-University-School-of-Law/219237501430509?sk=wall
 and Twitterhttp://twitter.com/#!/CLRForum.



Mark and I hope this will be a useful resource for folks interested in these 
issues, very much including those on this listserv, and we are eager to know 
what you think.



Please contact ushttp://clrforum.org/contact/ to share your thoughts or write 
me or Mark directly.



Marc

* * * * * * * * * * * * * * * * * * *
Marc O. DeGirolami
Assistant Professor of Law
St. John's University School of Law
8000 Utopia Parkway
Queens, NY 11439
(718) 990-6760; degiro...@stjohns.edu

Online papershttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=509953
Web 
pagehttp://www.stjohns.edu/academics/graduate/law/faculty/Profiles/degirolami/degirolami.stj
Blog: Mirror of Justicehttp://www.mirrorofjustice.blogs.com/


___
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.