RE: RFRA and claimants' theories of complicity
I'd also add that the law already does impose liability in the health care reimbursement context for the type of complicity Eugene notes below. Among its various regulations, the Office of Foreign Asset Control (OFAC) prohibits US persons from engaging in any transactions with any entity on OFAC's Specially Designated Nationals (SDN) list. As an employer with a self-insured health care plan with lots of employees overseas, we must make sure that we don't reimburse the employee for the costs of care from any provider on the SDN list.The fact that the employee chose this provider doesn't insulate us from liability if we actually pay for the care (whether by paying the provider directly or reimbursing the employee's out of pocket costs). From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, October 04, 2012 1:44 PM To: Law & Religion issues for Law Academics Subject: RE: RFRA and claimants' theories of complicity Of course when criminal law or tort law makes someone liability for complicity, it must set forth an objective definition of what counts as complicity. My point (and Doug's) is that, when someone claims a religious duty to avoid complicity with conduct he views as sinful (under RFRA), it doesn't make much sense to say "Oh, that's not a credible theory of complicity" when it's a theory very similar to what the legal system itself sometimes uses in deciding complicity with conduct that it views as wrong. I think the proper approach is a standard that focuses on what the claimant sincerely believes. That is certainly what we use in non-complicity cases. When the law defines what's a crime, it must use objective standards; but when a claimant says "I want an exemption from a requirement that my store be open on Saturday," or "I want an exemption from a requirement that I show up to work clean-shaven," religious exemption law doesn't use any "objective" standard to determine which laws impose a subjective burden - the question is whether this person subjectively believes that he must not work on Saturdays, or must not shave himself. The same, I think, should be used in complicity cases; the substantial burden should be whether the defendant subjectively believes that certain actions would constitute religiously forbidden complicity. (Of course, the religious exemption claim could still be denied, either if a court finds that imposing the burden passes strict scrutiny, or if the legislature exempts the relevant statute from the RFRA.) But if we are to impose some sort of second-guessing, by rejecting claims that are somehow too "bizarre" (to quote an ambiguous phrase from Thomas), then it seems to me hard to say "Your religious view of complicity with religiously forbidden conduct are bizarre" when they are very similar to the views that the legal system itself adopts as to complicity with legally forbidden conduct. Alternatively, if we are to impose not just a "bizareness" review, but an objective rule that treats objections based on sin-by-complicity concerns differently from objections based on sin-by-other-things concerns, then the question is what the "objective rule" should be. Why shouldn't this objective rule reflect the commonplace tort law rule, and occasional criminal law rule, that says that knowledge that one is very likely providing assistance to conduct constitutes "complicity" with that conduct, to the point that the criminal law or tort law treats it as leading to liability, and RFRA law treats it as justifying a claim of substantial burden? Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, October 04, 2012 10:24 AM To: Law & Religion issues for Law Academics Subject: Re: RFRA and claimants' theories of complicity In these cases about landlord or employer liability or criminal complicity, the landlord or employer is denying complicity, and the law imposes objective standards to adjudicate the question. It would never be the case that the law would allow the landlord or employer to escape liability by saying "I didn't feel responsible for the conduct." So don't we need similarly objective standards to test a RFRA claimant's assertion of proximity or responsibility? And won't any such standards involve courts second-guessing the religious beliefs of others? The RFRA context requires either "I sincerely say so" (which many on the list have argued for, but that has nothing to do wi
RE: RFRA and claimants' theories of complicity
I'd also add that the law already does impose liability in the health care reimbursement context for the type of complicity Eugene notes below. Among its various regulations, the Office of Foreign Asset Control (OFAC) prohibits US persons from engaging in any transactions with any entity on OFAC's Specially Designated Nationals (SDN) list. As an employer with a self-insured health care plan with lots of employees overseas, we must make sure that we don't reimburse the employee for the costs of care from any provider on the SDN list.The fact that the employee chose this provider doesn't insulate us from liability if we actually pay for the care (whether by paying the provider directly or reimbursing the employee's out of pocket costs). Derek L. Gaubatz IMB General Counsel Our vision is a multitude from every language, people, tribe and nation knowing and worshipping our Lord Jesus Christ. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, October 04, 2012 1:44 PM To: Law & Religion issues for Law Academics Subject: RE: RFRA and claimants' theories of complicity Of course when criminal law or tort law makes someone liability for complicity, it must set forth an objective definition of what counts as complicity. My point (and Doug's) is that, when someone claims a religious duty to avoid complicity with conduct he views as sinful (under RFRA), it doesn't make much sense to say "Oh, that's not a credible theory of complicity" when it's a theory very similar to what the legal system itself sometimes uses in deciding complicity with conduct that it views as wrong. I think the proper approach is a standard that focuses on what the claimant sincerely believes. That is certainly what we use in non-complicity cases. When the law defines what's a crime, it must use objective standards; but when a claimant says "I want an exemption from a requirement that my store be open on Saturday," or "I want an exemption from a requirement that I show up to work clean-shaven," religious exemption law doesn't use any "objective" standard to determine which laws impose a subjective burden - the question is whether this person subjectively believes that he must not work on Saturdays, or must not shave himself. The same, I think, should be used in complicity cases; the substantial burden should be whether the defendant subjectively believes that certain actions would constitute religiously forbidden complicity. (Of course, the religious exemption claim could still be denied, either if a court finds that imposing the burden passes strict scrutiny, or if the legislature exempts the relevant statute from the RFRA.) But if we are to impose some sort of second-guessing, by rejecting claims that are somehow too "bizarre" (to quote an ambiguous phrase from Thomas), then it seems to me hard to say "Your religious view of complicity with religiously forbidden conduct are bizarre" when they are very similar to the views that the legal system itself adopts as to complicity with legally forbidden conduct. Alternatively, if we are to impose not just a "bizareness" review, but an objective rule that treats objections based on sin-by-complicity concerns differently from objections based on sin-by-other-things concerns, then the question is what the "objective rule" should be. Why shouldn't this objective rule reflect the commonplace tort law rule, and occasional criminal law rule, that says that knowledge that one is very likely providing assistance to conduct constitutes "complicity" with that conduct, to the point that the criminal law or tort law treats it as leading to liability, and RFRA law treats it as justifying a claim of substantial burden? Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, October 04, 2012 10:24 AM To: Law & Religion issues for Law Academics Subject: Re: RFRA and claimants' theories of complicity In these cases about landlord or employer liability or criminal complicity, the landlord or employer is denying complicity, and the law imposes objective standards to adjudicate the question. It would never be the case that the law would allow the landlord or employer to escape liability by saying "I didn't feel responsible for the conduct." So don't we need similarly objective standards to test a RFRA claimant's assertion of proximity or responsibility? And won't any such standards involve courts second-guessing the religious beliefs of others? The RFRA context requires ei
RE: RFRA and claimants' theories of complicity
Of course when criminal law or tort law makes someone liability for complicity, it must set forth an objective definition of what counts as complicity. My point (and Doug's) is that, when someone claims a religious duty to avoid complicity with conduct he views as sinful (under RFRA), it doesn't make much sense to say "Oh, that's not a credible theory of complicity" when it's a theory very similar to what the legal system itself sometimes uses in deciding complicity with conduct that it views as wrong. I think the proper approach is a standard that focuses on what the claimant sincerely believes. That is certainly what we use in non-complicity cases. When the law defines what's a crime, it must use objective standards; but when a claimant says "I want an exemption from a requirement that my store be open on Saturday," or "I want an exemption from a requirement that I show up to work clean-shaven," religious exemption law doesn't use any "objective" standard to determine which laws impose a subjective burden - the question is whether this person subjectively believes that he must not work on Saturdays, or must not shave himself. The same, I think, should be used in complicity cases; the substantial burden should be whether the defendant subjectively believes that certain actions would constitute religiously forbidden complicity. (Of course, the religious exemption claim could still be denied, either if a court finds that imposing the burden passes strict scrutiny, or if the legislature exempts the relevant statute from the RFRA.) But if we are to impose some sort of second-guessing, by rejecting claims that are somehow too "bizarre" (to quote an ambiguous phrase from Thomas), then it seems to me hard to say "Your religious view of complicity with religiously forbidden conduct are bizarre" when they are very similar to the views that the legal system itself adopts as to complicity with legally forbidden conduct. Alternatively, if we are to impose not just a "bizareness" review, but an objective rule that treats objections based on sin-by-complicity concerns differently from objections based on sin-by-other-things concerns, then the question is what the "objective rule" should be. Why shouldn't this objective rule reflect the commonplace tort law rule, and occasional criminal law rule, that says that knowledge that one is very likely providing assistance to conduct constitutes "complicity" with that conduct, to the point that the criminal law or tort law treats it as leading to liability, and RFRA law treats it as justifying a claim of substantial burden? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, October 04, 2012 10:24 AM To: Law & Religion issues for Law Academics Subject: Re: RFRA and claimants' theories of complicity In these cases about landlord or employer liability or criminal complicity, the landlord or employer is denying complicity, and the law imposes objective standards to adjudicate the question. It would never be the case that the law would allow the landlord or employer to escape liability by saying "I didn't feel responsible for the conduct." So don't we need similarly objective standards to test a RFRA claimant's assertion of proximity or responsibility? And won't any such standards involve courts second-guessing the religious beliefs of others? The RFRA context requires either "I sincerely say so" (which many on the list have argued for, but that has nothing to do with the objective complicity rules), or judicial evaluation (under objective, legal standards, not Thomas-like, subjective religious ones) of proximity to something the religious claimant views as evil that others view as necessary and good. On a different but related point, because of the Establishment Clause, the effects of any statutory exemptions on third parties are an explicit part of the legal equation (Caldor; Cutter v. Wilkinson re: the RLUIPA calculus), though they come in on the government interest side of the story (avoid harm to others, perhaps avoid Establishment Clause violations caused by that harm), and not the burden story. So the employees' interest in obtaining the services cannot be made to disappear from the ultimate RFRA question. On Thu, Oct 4, 2012 at 12:54 PM, Douglas Laycock mailto:dlayc...@virginia.edu>> wrote: Eugene's analogies in the insurance context are hypothetical. Similar analogies in the landlord-tenant context are very real. If a tenant uses leased premises for prostitution, the landlord is responsible. There are California cases on this, and I don't th
Re: RFRA and claimants' theories of complicity
In these cases about landlord or employer liability or criminal complicity, the landlord or employer is denying complicity, and the law imposes objective standards to adjudicate the question. It would never be the case that the law would allow the landlord or employer to escape liability by saying "I didn't feel responsible for the conduct." So don't we need similarly objective standards to test a RFRA claimant's assertion of proximity or responsibility? And won't any such standards involve courts second-guessing the religious beliefs of others? The RFRA context requires either "I sincerely say so" (which many on the list have argued for, but that has nothing to do with the objective complicity rules), or judicial evaluation (under objective, legal standards, not Thomas-like, subjective religious ones) of proximity to something the religious claimant views as evil that others view as necessary and good. On a different but related point, because of the Establishment Clause, the effects of any statutory exemptions on third parties are an explicit part of the legal equation (Caldor; Cutter v. Wilkinson re: the RLUIPA calculus), though they come in on the government interest side of the story (avoid harm to others, perhaps avoid Establishment Clause violations caused by that harm), and not the burden story. So the employees' interest in obtaining the services cannot be made to disappear from the ultimate RFRA question. On Thu, Oct 4, 2012 at 12:54 PM, Douglas Laycock wrote: > Eugene's analogies in the insurance context are hypothetical. Similar > analogies in the landlord-tenant context are very real. > > If a tenant uses leased premises for prostitution, the landlord is > responsible. There are California cases on this, and I don't think they are > in any way unusual. But when landlords felt responsible for other kinds of > sexual conduct on their leased premises, their sense of responsibility was > dismissed as unreasonable, in discussions much like the one we have been > having, and California said that requiring landlords to rent to unmarried > couples did not burden their religious exercise. > -- 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 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: RFRA and claimants' theories of complicity
Eugene's analogies in the insurance context are hypothetical. Similar analogies
in the landlord-tenant context are very real.
If a tenant uses leased premises for prostitution, the landlord is responsible.
There are California cases on this, and I don't think they are in any way
unusual. But when landlords felt responsible for other kinds of sexual conduct
on their leased premises, their sense of responsibility was dismissed as
unreasonable, in discussions much like the one we have been having, and
California said that requiring landlords to rent to unmarried couples did not
burden their religious exercise.
On Thu, 4 Oct 2012 08:49:53 -0700
"Volokh, Eugene" wrote:
>I continue to think that, when someone claims that a law
> substantially burdens their religious beliefs by requiring them to do
> something that they view as religiously wrong because it is complicit with
> evil, the question should be whether the claimant sincerely believes that
> theory of complicity, not whether secular judges view that theory of
> complicity as sensible.
>
>But let's assume for a moment that consistency with secular
> views of complicity is indeed relevant, and let me raise the following
> hypothetical: Say that an employer buys a health insurance policy for his
> employees under which the insurer undertakes to pay for behavior that is
> viewed as felonious by the secular legal system itself. (An odd hypo, I
> realize, because insurers wouldn't do that, but bear with me for a moment.)
>
>Say the insurer, for instance, offers to pay for medical marijuana, which
>remains illegal under federal law (assume possession is made a felony), or to
>pay for "conversion therapy" for gay and lesbian minors (something that is
>forbidden under a new California statute, and let's assume that it becomes a
>felony as well). And say the insurer knows, when he buys the policy, that
>some of his employees - maybe he even knows which ones - are planning to use
>the insurance to feloniously buy the forbidden good or service.
>
>Wouldn't that be potentially considered criminal aiding and
> abetting or criminal facilitation, in those states that set a mens rea of
> knowledge (or even gross recklessness) for criminality? See, e.g., N.Y.
> PENAL LAW § 115.00 (McKinney 2004) ("A person is guilty of criminal
> facilitation in the fourth degree when, believing it probable that he is
> rendering aid ... to a person who intends to commit a crime, he engages in
> conduct which provides such person with means or opportunity for the
> commission thereof and which in fact aids such person to commit a felony.");
> TENN. CODE ANN. § 39-11-403 (2004) ("A person is criminally responsible for
> the facilitation of a felony, if, knowing that another intends to commit a
> specific felony, but without the intent required for criminal responsibility
> under [general aiding and abetting law], the person knowingly furnishes
> substantial assistance in the commission of the felony."). To be sure, the
> employees could well have bo
ught the
>marijuana or the conversion therapy with their own salary; but it seems to me
>likely - at least not implausible - that the law would draw a distinction
>between an employer's knowledge that employees are using their salary to buy
>marijuana, and an employer's knowledge that employees are so using a health
>insurance policy bought by the employer that expressly covers medical
>marijuana purchases.
>
>Likewise, say that an employer provides employees with the
> option of making charitable donations through their payroll system, and
> includes on the list of eligible charities an organization that it knows has
> been designated as a foreign terrorist organization. I would think the
> employer could quite plausibly be prosecuted under the federal law banning
> material support to foreign terrorist organizations, even though the employer
> would likely not be liable if it simply knew that employees were donating
> some of their general salaries to the FTO.
>
>If I'm right about this, then why isn't an employer's similar
> claim of complicity - albeit complicity under its religious obligations,
> rather than under secular law - at least plausible? An employer thinks use
> of contraceptives is sinful, just as the secular law (at least secular law
> that requires a mental state of knowledge or gross recklessness) thinks use
> of marijuana or contribution to foreign terrorist organizations should be
> illegal. The employer thinks that it would be complicit in such use if it
> pays for a policy that expressly covers contraceptives, but not if it just
> pays a general salary that employees are free to use for contraceptives. The
> secular law, I take it, would draw much the same line (at least in some
> jurisdictions). Why should we balk at the line the employer drew, assuming
> it's sincere
