RE: On implausible burdens
Let me take up Chip's question. I too accept Chip's point that the Establishment Clause encompasses certain harms to the polity that occur when the government adopts a religious identity. FWIW, on that basis among others, I joined a brief opposing the prayers in Town of Greece, as well as filing a brief supporting Hobby Lobby. But I think that an appeal like Alan's to "mutual fairness"-strong free exercise as well as strong non-establishment-is not just important but is also ultimately consistent with Chip's point about polity harms. We have to ask why government adoption of a religious identity is particularly harmful to the polity-compared with other controversial matters on which government adopts official positions-and several of the answers to that question support accommodation for religious exercise as well. One "polity" reason, for example, is that religion's integrity is harmed-even the favored religion, as Chip suggests-when the government intervenes. A concern that government intervention will harm religion also supports accommodations from regulatory burdens. There's also the Eisgruber and Sager argument: the sense of division and exclusion that will occur, even if only long-term, when government takes religious sides is particularly great because religion goes to ultimate matters and is identity-defining. But that same reason suggests that there are distinctive harms, including long-term ones, when government forces people to violate their religious beliefs (harms demanding a higher level of justification than "the government has so legislated"). Third, there is the argument that we want to preserve the sphere of ultimate matters as a limit on government's power: leave it to the private persons and groups. But that too suggests some closer look before government forces those people and groups to violate their beliefs or identity concerning ultimate matters. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 E-mail: tcb...@stthomas.edu<mailto:tcb...@stthomas.edu> SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com<http://www.mirrorofjustice.blogs.com/mirrorofjustice> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Sunday, February 16, 2014 9:59 PM To: Law & Religion issues for Law Academics; aebrownst...@ucdavis.edu Subject: On implausible burdens No apologies necessary, Alan. All of the points in your recent post -- that the Town of Greece prayer policy raises structural issues as well as coercion/liberty issues , and that many on (and off) this list are quite selective in the religious liberty concerns with which they sympathize -- are extremely well taken. Rick Garnett brought your MOJ post to the list, and I am genuinely curious whether he and others at MOJ agree with your assertion (and mine) that the Town of Greece prayer policy raises very serious questions of whether the Town (quite independent of coercion) had unconstitutionally aligned itself with Christianity. Thanks. Chip On Sun, Feb 16, 2014 at 10:33 PM, Alan Brownstein mailto:aebrownst...@ucdavis.edu>> wrote: I apologize to Chip for not responding earlier to his post. I think Chip makes a very important point. There are profoundly important structural arguments that justify challenging the Town of Greece's prayer policy. I did not intend to suggest otherwise in my blog post. In addition to these structural concerns, I also think the Town's policy violated constitutional norms of religious equality (see, e.g. Larsen v. Valente). Through its invitation policy, the Town discriminated in favor of established religions in the community and against members of minority faiths who worshiped in adjoining towns and residents who are spiritual but unaffiliated with any organized religious congregation (close to 20% of Americans in recent studies.) But I also think there is an independent and direct burden on religious liberty when citizens who are seeking benefits from government officials, or who are petitioning government officials on matters directly impacting their lives, livelihood or property, or who are having disputes resolved through administrative decision-making or litigation are asked first to bow their heads, stand, and join in state sponsored prayers that are being publicly offered in their names. I think that is inherently coercive and is a direct abridgement of religious liberty, notwithstanding the other constitutional failings of the Town of Greece's policy. It was this latte
On implausible burdens
No apologies necessary, Alan. All of the points in your recent post -- that the Town of Greece prayer policy raises structural issues as well as coercion/liberty issues , and that many on (and off) this list are quite selective in the religious liberty concerns with which they sympathize -- are extremely well taken. Rick Garnett brought your MOJ post to the list, and I am genuinely curious whether he and others at MOJ agree with your assertion (and mine) that the Town of Greece prayer policy raises very serious questions of whether the Town (quite independent of coercion) had unconstitutionally aligned itself with Christianity. Thanks. Chip On Sun, Feb 16, 2014 at 10:33 PM, Alan Brownstein wrote: > I apologize to Chip for not responding earlier to his post. I think Chip > makes a very important point. There are profoundly important structural > arguments that justify challenging the Town of Greece's prayer policy. I > did not intend to suggest otherwise in my blog post. In addition to these > structural concerns, I also think the Town's policy violated constitutional > norms of religious equality (see, e.g. Larsen v. Valente). Through its > invitation policy, the Town discriminated in favor of established religions > in the community and against members of minority faiths who worshiped in > adjoining towns and residents who are spiritual but unaffiliated with any > organized religious congregation (close to 20% of Americans in recent > studies.) > > > > But I also think there is an independent and direct burden on religious > liberty when citizens who are seeking benefits from government > officials, or who are petitioning government officials on matters directly > impacting their lives, livelihood or property, or who are having disputes > resolved through administrative decision-making or litigation are asked > first to bow their heads, stand, and join in state sponsored prayers that > are being publicly offered in their names. I think that is inherently > coercive and is a direct abridgement of religious liberty, > notwithstanding the other constitutional failings of the Town of Greece's > policy. > > > > It was this latter religious liberty concern that was the focus of my blog > post. This is the concern which I believe can be meaningfully analogized to > the Hobby Lobby litigation and related cases. I certainly know colleagues > and acquaintances who find this argument about coercion and religious > liberty compelling in Town of Greece, but who are far less sympathetic to > the religious liberty claims of plaintiffs in Hobby Lobby and related cases. > > > > Alan > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ___ 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: On implausible burdens
I apologize to Chip for not responding earlier to his post. I think Chip makes a very important point. There are profoundly important structural arguments that justify challenging the Town of Greece's prayer policy. I did not intend to suggest otherwise in my blog post. In addition to these structural concerns, I also think the Town's policy violated constitutional norms of religious equality (see, e.g. Larsen v. Valente). Through its invitation policy, the Town discriminated in favor of established religions in the community and against members of minority faiths who worshiped in adjoining towns and residents who are spiritual but unaffiliated with any organized religious congregation (close to 20% of Americans in recent studies.) But I also think there is an independent and direct burden on religious liberty when citizens who are seeking benefits from government officials, or who are petitioning government officials on matters directly impacting their lives, livelihood or property, or who are having disputes resolved through administrative decision-making or litigation are asked first to bow their heads, stand, and join in state sponsored prayers that are being publicly offered in their names. I think that is inherently coercive and is a direct abridgement of religious liberty, notwithstanding the other constitutional failings of the Town of Greece's policy. It was this latter religious liberty concern that was the focus of my blog post. This is the concern which I believe can be meaningfully analogized to the Hobby Lobby litigation and related cases. I certainly know colleagues and acquaintances who find this argument about coercion and religious liberty compelling in Town of Greece, but who are far less sympathetic to the religious liberty claims of plaintiffs in Hobby Lobby and related cases. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Saturday, February 15, 2014 6:11 AM To: Law & Religion issues for Law Academics Subject: Re: On implausible burdens I too found Alan Brownstein's post, which Rick put up at MOJ and linked in his post here, quite thoughtful and provocative. I am not a Catholic, so I do not feel like I have a basis for judgment about Notre Dame's arguments that rest on ideas of both complicity and scandal (as I understand the latter, which I probably don't, it involves institutional responsibility to avoid active participation in a sinful enterprise). Part of the problem with RFRA, in its incorporation of pre-Smith free exercise principles, is the Thomas v. Review Board doctrine that believers self-declare the religious substantiality of their own burdens. Judges can weigh the secular cost (fines, prison, etc.) of compliance with faith but cannot evaluate the religious cost of complying with the law. On that latter question, believers are judges in their own cause. But I have a deeper problem with Alan's post and Rick's reaction to it. Rick seems to be one who has trouble seeing the burdens of publicly sponsored prayer in Town of Greece, or seeing the problem of public financing of religious education, through vouchers or otherwise. Rick frequently expresses doubt, sometimes tied to ideas of standing, about the injury associated with these practices. With all respect to Rick and Alan, I think the equation of Town of Greece with Hobby Lobby (or Notre Dame) rests on a profound category mistake. The free exercise clause (and RFRA) protects those who believe and practice their faiths (individual and institutional actors). The establishment clause is aimed primarily at polity harms, not injuries to individuals. Judge Calabresi, in Town of Greece, did not focus on coercion of those who attended Town Board meetings; the vice of the prayer practice, he wrote, was that it "aligned the Town with Christianity." This would be a constitutional wrong even if every person in the Town was a committed Christian who explicitly consented to the prayers. Our constitutional philosophy includes a commitment that the government will not take on a religious identity -- this protects liberty, yes, but it also protects against the long-term harm to the political community that is generated by government adoption of a religious identity. An analogy might be to the Town giving up democracy and turning over all power to govern to a dictator. Even before the dictator begins invading "rights" (speech, religion, etc.), we would say that such a decision offends structural constitutional principles about the allocation of power. In our system, power over religious belief and identity belongs in private hands only. The Constitution precludes a collective decision to turn that power over to government. So, much as I admire Rick and Alan's attempt to
Re: On implausible burdens
Paul: I do think I am asking a different question from the one normally dealt with in the literature, for the reason you note. That said, I suspect that there is a good deal in the literature addressed to the question I pose--if anyone has some citations, I'd be grateful. Who are the religious "experts" that we outsource religious freedom questions to? Isn't everyone an expert on her own religious beliefs (contrary to medical questions), and (contra to medical questions again) aren't we forbidden from seeking religious experts who would undermine the person's religious freedom claim? That strikes me as quite a meaningful difference between medical accommodations and religious accommodations. I'm not ready to concede your point about speech rights functioning the same way. The normative reasons that we privilege and protect speech are of course debated extensively, but they all have in common (I think) that speech rights somehow redound to the benefit of the polity. Having made that decision in the abstract, we have to accept that we will protect some speech that isn't particularly worthy of such protection. In the case of religion, however, I'm asking why protecting religious exercise ever redounds to the benefit of the polity in the first place. If we can't identify any way in which it does, then protecting it above other things--like dignity or personal feelings of well-being--is difficult for me to understand. I should add that in a society in which religion is basically necessary to understand the way the world works, it makes sense to privilege religion and be pluralistic about it. But in today's society, in which huge swaths of the population find it entirely possible to explain the world (at least well enough) without reference to the supernatural, religion seems to me more like a personal choice akin to aesthetic preferences, a search for inner peace or communal structure. In other words, the increasing plausibility of atheism or agnosticism seems to me to change the normative playing field quite a bit. On Saturday, February 15, 2014, Paul Horwitz wrote: > The literature on this question, as a legal question. Is of course growing > like Topsy. But I am not sure that you are asking the same question. > Because this country does not tend to privilege conscience qua conscience > to the same degree as religion, the question usually asked is why religion > is special as against ostensibly similar conscience claims. But your > question seems to apply equally to either--and may, indeed, amount to > asking why any and every individual claim, say of autonomy or dignity, is > not subjected to some form of consequential analysis and balancing. > > A few other observations: > > 1) Along one relevant axis we do treat, eg., medical claims to > accommodation in the same way as we treat religious accommodation claims. > Both raise questions of the epistemic ability or legitimacy of legal > decision-makers, and involve substantial deference to the decisions of > outside experts, although in the case of medicine a) we are, or more often > pretend we are, able to second-guess those claims to a greater degree, and > b) those questions involve a less plural interpretive community. > > 2) In both cases, there are underlying normative issues that cannot be > fully answered by the expert community. Even under strict scrutiny regimes > we may, for normatively charged reasons, prefer compelling state interests > to religious claims. Even where there is medical or other expert > consensus--on, say, the capacity of a fetus to live outside the womb or of > an individual to decide whether to end his life, or the environmental risks > presented by nuclear power--that consensus does not tell us what we ought > to do. At best, we can more or less carefully separate the two kinds of > questions and argue about who ought to have the authority to decide each of > them. That, to refer back to the earlier discussion, is probably the core > academic responsibility in this area. > > 3) There are arguably some core conscience claims outside of religion that > we do treat essentially as black box decisions, at least in individual > cases, including many equality and speech claims. Having decided to > privilege artistic or political speech, for instance, we don't ask why > Andres Serrano needed Piss Christ not to be Waterlogged Christ, or rank his > artistic impulses against those of other artists, or do much by way of > balancing Serrano's artistic needs against the needs of the community. > > 4) Having started down the normative road, we might (and sometimes do, > but we could always do so) just as well ask why we privilege community > needs over individual claims, the state over other normative or > interpretive communities, equality over liberty, ostensibly secular reasons > over religious ones, etc. > > On Feb 15, 2014, at 7:41 PM, "Hillel Y. Levin" > > > wrote: > > I have found the posts about the HL and ND cases quite fasci
Re: On implausible burdens
The literature on this question, as a legal question. Is of course growing like Topsy. But I am not sure that you are asking the same question. Because this country does not tend to privilege conscience qua conscience to the same degree as religion, the question usually asked is why religion is special as against ostensibly similar conscience claims. But your question seems to apply equally to either--and may, indeed, amount to asking why any and every individual claim, say of autonomy or dignity, is not subjected to some form of consequential analysis and balancing. A few other observations: 1) Along one relevant axis we do treat, eg., medical claims to accommodation in the same way as we treat religious accommodation claims. Both raise questions of the epistemic ability or legitimacy of legal decision-makers, and involve substantial deference to the decisions of outside experts, although in the case of medicine a) we are, or more often pretend we are, able to second-guess those claims to a greater degree, and b) those questions involve a less plural interpretive community. 2) In both cases, there are underlying normative issues that cannot be fully answered by the expert community. Even under strict scrutiny regimes we may, for normatively charged reasons, prefer compelling state interests to religious claims. Even where there is medical or other expert consensus--on, say, the capacity of a fetus to live outside the womb or of an individual to decide whether to end his life, or the environmental risks presented by nuclear power--that consensus does not tell us what we ought to do. At best, we can more or less carefully separate the two kinds of questions and argue about who ought to have the authority to decide each of them. That, to refer back to the earlier discussion, is probably the core academic responsibility in this area. 3) There are arguably some core conscience claims outside of religion that we do treat essentially as black box decisions, at least in individual cases, including many equality and speech claims. Having decided to privilege artistic or political speech, for instance, we don't ask why Andres Serrano needed Piss Christ not to be Waterlogged Christ, or rank his artistic impulses against those of other artists, or do much by way of balancing Serrano's artistic needs against the needs of the community. 4) Having started down the normative road, we might (and sometimes do, but we could always do so) just as well ask why we privilege community needs over individual claims, the state over other normative or interpretive communities, equality over liberty, ostensibly secular reasons over religious ones, etc. > On Feb 15, 2014, at 7:41 PM, "Hillel Y. Levin" wrote: > > I have found the posts about the HL and ND cases quite fascinating and > illuminating. Thank you all. > > It strikes me that the question many of us are debating is really a normative > one rather than a descriptive one. Why should law and legal culture privilege > religious needs over other needs? It is plain to me that the law does > privilege religion in ways both formal (see: Sherbert-version of the Free > Exercise clause, RFRA, and the myriad state and federal laws that have > religious accommodations built in to them) and informal. By informal, I mean > the reluctance that many of us have in questioning the sincerity of ND's > claims. > > But why should law give wider berth to religious needs than to others? Here's > a simple example: many laws accommodate sabbath and religious holiday > observance; but what about the person who simply says, "for my own mental > health, emotional well-being, and feeling of centered-ness, I can't work on > Tuesdays." Such a person would suffer both formally (the law does not protect > this person's psychic needs) and informally (many people, even in polite > society, would scoff at this person's claim and express doubt about its > sincerity, or perhaps even question the sanity of the person who asserts a > need for accommodation on this basis). > > In a sense, the law treats religion as a black box. We can't really claim to > understand what compels a person's religious needs, but the law demands that > we accept whatever that black box produces as a bona fide reason to provide > the accommodation. > > No other accommodation demanded by the law that I am aware of operates this > way. If a medical accommodation is requested, we want to understand why the > person needs the accommodation; we want an expert to certify the need; we > want to know the science behind it. Nothing else gets the black box > treatment. A person's (sincere!) psychic and emotional needs, let alone > aesthetic preferences, will never be enough to get special treatment. > > Those who think that there is something special about religion are more > likely, of course, to side with the NDs and HLs of the world. Those who don't > are less likely to
Re: On implausible burdens
that such a decision offends structural > constitutional principles about the allocation of power. In our system, > power over religious belief and identity belongs in private hands only. > The Constitution precludes a collective decision to turn that power over > to government. > > So, much as I admire Rick and Alan's attempt to appeal to our sense of > mutual fairness and respect for one another's commitments to religious > freedom for individuals, I think something deeply important is lost in this > formulation of the connection between Town of Greece and Hobby Lobby. > > > On Sat, Feb 15, 2014 at 8:16 AM, Penalver, Eduardo > wrote: > >> Thanks, Rick -- For me, the problem with the ND claim is precisely the >> opposite. If the beliefs of the group were more unfamiliar, I'd be less >> puzzled and more likely to defer to the group's own description of the >> burden. As a Catholic, I feel more entitled to probe, and as a consequence >> I have really struggled to reconcile the ND litigation position with what I >> understand Catholic teaching to be on cooperation with evil. That's not to >> say that my kinds of insider-doubts about the accuracy and sincerity of >> ND's claims should inform the ultimate legal decision, but watching >> Catholic groups adopt the approach they have in these cases has made me >> more sensitive to some of the potential costs of RFRA. >> >> Eduardo >> >> On Feb 14, 2014, at 6:52 PM, "Rick Garnett" wrote: >> >> >> *From:* Rick Garnett >> *Date:* February 14, 2014 at 5:42:42 PM MST >> *To:* "Levinson, Sanford V" >> *Cc:* "religionlawp...@lists.ucla.edu" , >> "conlawp...@lists.ucla.edu" >> *Subject:* *On implausible burdens* >> >> Dear colleagues - Today's lively traffic regarding Judge Posner's and >> ND's lawyer's performance (I think Judge Posner did not behave well) and >> the (redux) plausibility of ND's claim that the HHS mandate (as modified, >> in ND's case) imposes an unnecessary and substantial burden on religious >> exercise within the meaning of RFRA (I think the RFRA claims are strong) >> makes me think that the following blog post, by our colleague Alan >> Brownstein, is well worth a read and reflection: >> >> >> http://mirrorofjustice.blogs.com/mirrorofjustice/2014/02/prof-alan-brownstein-on-this-terms-religious-freedom-cases.html >> >> Some on this list have shared their view that ND's claim is >> implausible, or disingenuous, or insincere, or incoherent, or insane, etc. >> and, clearly, most of us are not sympathetic, even if we are open in >> principle to religious accommodations. Alan's post - which, as one would >> expect, is fair, charitable, and thoughtful - is (among other things) an >> invitation to law-and-religion folks to use the Town of Greece and HHS >> cases as an occasion to ask ourselves why we sometimes dismiss as >> insubstantial (or worse) claims of religion-related harm or burdens on >> religious exercise that we do not understand or that we are not willing to >> accommodate. >> >> I admit: I am probably as mystified by the hostile reactions of those >> who are mystified by ND's claims (which doesn't mean I think the ultimate >> question is easy) as they are by those claims. I have long been >> underwhelmed by the allegations of injury in religious-symbols cases. And, >> I regard the notion that ND's claims are - in a world where one's >> irritation at the prospect that, somewhere, a disadvantaged kid is using a >> voucher to attend a parochial school amounts to a standing-creating wound >> to conscience - bizarrely outside the realm of possibility (or worse!) >> as,well, bizarre. But . . . Alan's post is a powerful one and - like Larry >> Solum would say - "highly recommended." >> >> Best, Rick >> >> >> Sent from my iPad >> >> On Feb 14, 2557 BE, at 3:38 PM, "Levinson, Sanford V" < >> slevin...@law.utexas.edu> wrote: >> >>I know I've made this point before, but I still don't see the >> difference between the "setting in motion" that is generated by sending in >> the form and the "setting in motion" that occurs when one pays, under >> penalty of law, one's taxes that can then be used for all sorts of immoral >> purposes according to the tenets of one or another religion. If I didn't >> know better, I'd simply describe this claim as "frivolous,&qu
Re: On implausible burdens
I too found Alan Brownstein's post, which Rick put up at MOJ and linked in his post here, quite thoughtful and provocative. I am not a Catholic, so I do not feel like I have a basis for judgment about Notre Dame's arguments that rest on ideas of both complicity and scandal (as I understand the latter, which I probably don't, it involves institutional responsibility to avoid active participation in a sinful enterprise). Part of the problem with RFRA, in its incorporation of pre-Smith free exercise principles, is the Thomas v. Review Board doctrine that believers self-declare the religious substantiality of their own burdens. Judges can weigh the secular cost (fines, prison, etc.) of compliance with faith but cannot evaluate the religious cost of complying with the law. On that latter question, believers are judges in their own cause. But I have a deeper problem with Alan's post and Rick's reaction to it. Rick seems to be one who has trouble seeing the burdens of publicly sponsored prayer in Town of Greece, or seeing the problem of public financing of religious education, through vouchers or otherwise. Rick frequently expresses doubt, sometimes tied to ideas of standing, about the injury associated with these practices. With all respect to Rick and Alan, I think the equation of Town of Greece with Hobby Lobby (or Notre Dame) rests on a profound category mistake. The free exercise clause (and RFRA) protects those who believe and practice their faiths (individual and institutional actors). The establishment clause is aimed primarily at polity harms, not injuries to individuals. Judge Calabresi, in Town of Greece, did not focus on coercion of those who attended Town Board meetings; the vice of the prayer practice, he wrote, was that it "aligned the Town with Christianity." This would be a constitutional wrong even if every person in the Town was a committed Christian who explicitly consented to the prayers. Our constitutional philosophy includes a commitment that the government will not take on a religious identity -- this protects liberty, yes, but it also protects against the long-term harm to the political community that is generated by government adoption of a religious identity. An analogy might be to the Town giving up democracy and turning over all power to govern to a dictator. Even before the dictator begins invading "rights" (speech, religion, etc.), we would say that such a decision offends structural constitutional principles about the allocation of power. In our system, power over religious belief and identity belongs in private hands only. The Constitution precludes a collective decision to turn that power over to government. So, much as I admire Rick and Alan's attempt to appeal to our sense of mutual fairness and respect for one another's commitments to religious freedom for individuals, I think something deeply important is lost in this formulation of the connection between Town of Greece and Hobby Lobby. On Sat, Feb 15, 2014 at 8:16 AM, Penalver, Eduardo wrote: > Thanks, Rick -- For me, the problem with the ND claim is precisely the > opposite. If the beliefs of the group were more unfamiliar, I'd be less > puzzled and more likely to defer to the group's own description of the > burden. As a Catholic, I feel more entitled to probe, and as a consequence > I have really struggled to reconcile the ND litigation position with what I > understand Catholic teaching to be on cooperation with evil. That's not to > say that my kinds of insider-doubts about the accuracy and sincerity of > ND's claims should inform the ultimate legal decision, but watching > Catholic groups adopt the approach they have in these cases has made me > more sensitive to some of the potential costs of RFRA. > > Eduardo > > On Feb 14, 2014, at 6:52 PM, "Rick Garnett" wrote: > > > *From:* Rick Garnett > *Date:* February 14, 2014 at 5:42:42 PM MST > *To:* "Levinson, Sanford V" > *Cc:* "religionlawp...@lists.ucla.edu" , " > conlawp...@lists.ucla.edu" > *Subject:* *On implausible burdens* > > Dear colleagues - Today's lively traffic regarding Judge Posner's and > ND's lawyer's performance (I think Judge Posner did not behave well) and > the (redux) plausibility of ND's claim that the HHS mandate (as modified, > in ND's case) imposes an unnecessary and substantial burden on religious > exercise within the meaning of RFRA (I think the RFRA claims are strong) > makes me think that the following blog post, by our colleague Alan > Brownstein, is well worth a read and reflection: > > > http://mirrorofjustice.blogs.com/mirrorofjustice/2014/02/prof-alan-brownstein-on-this-terms-religious-freedom-cases.html > > Some on this list have shared their view that ND&#x
Re: On implausible burdens
Thanks, Rick -- For me, the problem with the ND claim is precisely the opposite. If the beliefs of the group were more unfamiliar, I'd be less puzzled and more likely to defer to the group's own description of the burden. As a Catholic, I feel more entitled to probe, and as a consequence I have really struggled to reconcile the ND litigation position with what I understand Catholic teaching to be on cooperation with evil. That's not to say that my kinds of insider-doubts about the accuracy and sincerity of ND's claims should inform the ultimate legal decision, but watching Catholic groups adopt the approach they have in these cases has made me more sensitive to some of the potential costs of RFRA. Eduardo On Feb 14, 2014, at 6:52 PM, "Rick Garnett" mailto:rgarn...@nd.edu>> wrote: From: Rick Garnett mailto:rgarn...@nd.edu>> Date: February 14, 2014 at 5:42:42 PM MST To: "Levinson, Sanford V" mailto:slevin...@law.utexas.edu>> Cc: "religionlawp...@lists.ucla.edu<mailto:religionlawp...@lists.ucla.edu>" mailto:religionlawp...@lists.ucla.edu>>, "conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>" mailto:conlawp...@lists.ucla.edu>> Subject: On implausible burdens Dear colleagues - Today's lively traffic regarding Judge Posner's and ND's lawyer's performance (I think Judge Posner did not behave well) and the (redux) plausibility of ND's claim that the HHS mandate (as modified, in ND's case) imposes an unnecessary and substantial burden on religious exercise within the meaning of RFRA (I think the RFRA claims are strong) makes me think that the following blog post, by our colleague Alan Brownstein, is well worth a read and reflection: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/02/prof-alan-brownstein-on-this-terms-religious-freedom-cases.html Some on this list have shared their view that ND's claim is implausible, or disingenuous, or insincere, or incoherent, or insane, etc. and, clearly, most of us are not sympathetic, even if we are open in principle to religious accommodations. Alan's post - which, as one would expect, is fair, charitable, and thoughtful - is (among other things) an invitation to law-and-religion folks to use the Town of Greece and HHS cases as an occasion to ask ourselves why we sometimes dismiss as insubstantial (or worse) claims of religion-related harm or burdens on religious exercise that we do not understand or that we are not willing to accommodate. I admit: I am probably as mystified by the hostile reactions of those who are mystified by ND's claims (which doesn't mean I think the ultimate question is easy) as they are by those claims. I have long been underwhelmed by the allegations of injury in religious-symbols cases. And, I regard the notion that ND's claims are - in a world where one's irritation at the prospect that, somewhere, a disadvantaged kid is using a voucher to attend a parochial school amounts to a standing-creating wound to conscience - bizarrely outside the realm of possibility (or worse!) as,well, bizarre. But . . . Alan's post is a powerful one and - like Larry Solum would say - "highly recommended." Best, Rick Sent from my iPad On Feb 14, 2557 BE, at 3:38 PM, "Levinson, Sanford V" mailto:slevin...@law.utexas.edu>> wrote: I know I’ve made this point before, but I still don’t see the difference between the “setting in motion” that is generated by sending in the form and the “setting in motion” that occurs when one pays, under penalty of law, one’s taxes that can then be used for all sorts of immoral purposes according to the tenets of one or another religion. If I didn’t know better, I’d simply describe this claim as “frivolous,” but I do realize that people I respect apparently take it seriously. But isn’t it a recipe for the kind of Scalian anarchy that he warned about in Smith? It is a sad truth that out everyday acts of compliance with the law, including tax law, serves to enable the state to do things we (perhaps justifiably) don’t like. I really don’t see how one can distinguish Notre Dame’s claim from the refusal of a postal worker to deliver mail to an abortion clinic on the grounds that it enables their wicked handiwork. I don’t think Barnette applies to this case, since the kids in that case were being forced to proclaim their allegiance, which they treated as an act of idolatry. And, for what it is worth, the Court was crystal clear in viewing it as a Free Speech, not a freedom of religion, case. From: conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu> [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Scot Zentner Sent: Friday, February 14, 2014 3:21 PM To: conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu> Subje
On implausible burdens
From: Rick Garnett mailto:rgarn...@nd.edu>> Date: February 14, 2014 at 5:42:42 PM MST To: "Levinson, Sanford V" mailto:slevin...@law.utexas.edu>> Cc: "religionlawp...@lists.ucla.edu<mailto:religionlawp...@lists.ucla.edu>" mailto:religionlawp...@lists.ucla.edu>>, "conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>" mailto:conlawp...@lists.ucla.edu>> Subject: On implausible burdens Dear colleagues - Today's lively traffic regarding Judge Posner's and ND's lawyer's performance (I think Judge Posner did not behave well) and the (redux) plausibility of ND's claim that the HHS mandate (as modified, in ND's case) imposes an unnecessary and substantial burden on religious exercise within the meaning of RFRA (I think the RFRA claims are strong) makes me think that the following blog post, by our colleague Alan Brownstein, is well worth a read and reflection: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/02/prof-alan-brownstein-on-this-terms-religious-freedom-cases.html Some on this list have shared their view that ND's claim is implausible, or disingenuous, or insincere, or incoherent, or insane, etc. and, clearly, most of us are not sympathetic, even if we are open in principle to religious accommodations. Alan's post - which, as one would expect, is fair, charitable, and thoughtful - is (among other things) an invitation to law-and-religion folks to use the Town of Greece and HHS cases as an occasion to ask ourselves why we sometimes dismiss as insubstantial (or worse) claims of religion-related harm or burdens on religious exercise that we do not understand or that we are not willing to accommodate. I admit: I am probably as mystified by the hostile reactions of those who are mystified by ND's claims (which doesn't mean I think the ultimate question is easy) as they are by those claims. I have long been underwhelmed by the allegations of injury in religious-symbols cases. And, I regard the notion that ND's claims are - in a world where one's irritation at the prospect that, somewhere, a disadvantaged kid is using a voucher to attend a parochial school amounts to a standing-creating wound to conscience - bizarrely outside the realm of possibility (or worse!) as,well, bizarre. But . . . Alan's post is a powerful one and - like Larry Solum would say - "highly recommended." Best, Rick Sent from my iPad On Feb 14, 2557 BE, at 3:38 PM, "Levinson, Sanford V" mailto:slevin...@law.utexas.edu>> wrote: I know I’ve made this point before, but I still don’t see the difference between the “setting in motion” that is generated by sending in the form and the “setting in motion” that occurs when one pays, under penalty of law, one’s taxes that can then be used for all sorts of immoral purposes according to the tenets of one or another religion. If I didn’t know better, I’d simply describe this claim as “frivolous,” but I do realize that people I respect apparently take it seriously. But isn’t it a recipe for the kind of Scalian anarchy that he warned about in Smith? It is a sad truth that out everyday acts of compliance with the law, including tax law, serves to enable the state to do things we (perhaps justifiably) don’t like. I really don’t see how one can distinguish Notre Dame’s claim from the refusal of a postal worker to deliver mail to an abortion clinic on the grounds that it enables their wicked handiwork. I don’t think Barnette applies to this case, since the kids in that case were being forced to proclaim their allegiance, which they treated as an act of idolatry. And, for what it is worth, the Court was crystal clear in viewing it as a Free Speech, not a freedom of religion, case. From: conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu> [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Scot Zentner Sent: Friday, February 14, 2014 3:21 PM To: conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu> Subject: RE: Posner on oral advocacy in religion caseesri I am not sure, but is it not the case that ND's precise claim is that the exemption part of the form is not the problem, but the fact that the form is also an "instrument" that sets in motion the provision of contraceptive services by the third party? So ND's objection is that the employee would not have contraceptives but for the provision of insurance by ND and its signing of the form. Scot Zentner Professor Political Science CSU, San Bernardino From: conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu> [conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu>] on behalf of Marci Hamilton [hamilton.ma...@gmail.com<mailto:hamilton.ma...@gmail.com>] Sent:
