RE: Religious freedom and 42 USC 666
Alan, I take your point, but would the objection to a statement and its symbolic effect be based on non-establishment rather than free exercise? A non-establishment argument seems quite plausible in your hypo where the statement, X is a false faith, is a facially religious assertion, but is it plausible if the criticism is just of a group's temporal activities? When the San Francisco board of supervisors adopted the resolution condemning groups that oppose homosexuality and the groups sued to challenge the resolution, did they state a free exercise as well as a non-establishment claim? Nearly all of the court's serious discussion was on the Establishment Clause. See American Family Assn. v. San Francisco, 277 F.3d 1114 (9th Cir. 2002). Tom From: [EMAIL PROTECTED] on behalf of Brownstein, Alan Sent: Fri 8/1/2008 12:34 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Tom, I tend to agree with you and Doug, but I think your description of Bowen v. Row is broader than the the way I would characterize it -- although the difference may be hair splitting. I think the idea behind Bowen v Roy isn't that a litigant can't challenge how the government has acted in its own operations, but that a litigant can't challenge how the government has acted in its own operations to avoid a kind of spiritual harm that has no real or secular world ramifications. I'm not certain that we can never challenge what the government calls its own laws. If the government used language in a law that stigmatized a particular religion -- an exemption or accommodation made available for members of false faiths (who use peyote in religious ceremonies or observe Saturday as the Sabbath) -- we might insist that the government change the language it uses to describe the accommodation because of the symbolic or status harm that it causes. But the alleged harm that results fr! om being indirectly associated with the mark of the beast is different. I think that the government is acting in its own sphere in Lyng, but it is also doing something to the Native Americans' ability to practice their faith that has a tangible, secular dimension to it -- and that distinguishes it from, and makes it a more difficult case than, Bowen v. Roy where the harm can only be understood in spiritual terms. Alan Brownstein UC Davis School of Law From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Berg, Thomas C. [EMAIL PROTECTED] Sent: Thursday, July 31, 2008 7:55 PM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Eugene, I think one can cut the cases the way you did; but one can also cut them the way I and Doug suggested. To satisfy the Roys' objection to providing the social security number, the government would have had to let them do something different (not provide the number). To satisfy Sherrod's objection, all the government has to do is renumber the statute; then it can require him to do exactly the same thing (pay the money). In that sense, Sherrod's objection is not to what he's being required to do, but to how the government has acted in its own operations (how it numbers a statute). I think that this characterization, bringing the case within Roy, is preferable because it explains the intuition that the government should win without resting on the problematic rationales that (a) the government must/can show a compelling interest/ least restrictive means in this instance -- i.e. it would be really hard to renumber this statute -- or (b) the claim is insincere or a mist! aken scriptural interpretation. Doesn't this eliminate the seeming puzzle in the case without creating any problems? My point overlaps with Doug's -- a regime allowing free exercise objections to what the government calls its laws is not manageable -- but it's narrower. I think that Nothwest Indian v. Lyng can be seen as the government doing something to the Native Americans, and not just as acting in its own sphere. Tom Berg University of St. Thomas School of Law (Minneapolis) From: [EMAIL PROTECTED] on behalf of Volokh, Eugene Sent: Thu 7/31/2008 5:57 PM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Well, I thought about Bowen v. Roy, but my sense is that the internal procedures point there was that the Roys weren't required to actually do anything that violated their religious beliefs (the government had stopped demanding that they provide Roy's social security number, and five Justices took the view that the government indeed had a constitutional obligation to so stop). The Roys just thought that the government's practice of giving Roy a number was spiritually harmful. Here, the claimant seems to be arguing not that it's bad for the government to have a section 666
RE: Religious freedom and 42 USC 666
Doug: I much appreciate your responses, and you may well be right. But I'm just not quite sure about the distinction between an objection to any behavior demanded of him and an objection to the government's behavior. As I understand it, his objection is to both, or rather to the latter through the former. He says, I object to your demanding that I go along with these things that are pursuant to 42 USC 666. He's not just saying that there's something wrong with the government's keeping records on him in room 666; he's saying that he refuses to go along with what the government demands of him, because the demand is made under 42 USC 666. Indeed, in the process he's objecting to the government's behavior, but the root of it is precisely the objection to what's demanded of him -- something that wasn't the case in what remained of Bowen, or for that matter in Lyng. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, July 31, 2008 7:51 PM To: religionlaw@lists.ucla.edu Subject: RE: Religious freedom and 42 USC 666 I understand that difference. It shows that the line is not perfectly clean. few lines are. But fundamentally, this guy's religious objection is not to any behavior demanded of him. It is to the government's behavior. He says, I'll pay my child support if you the government renumber your statutes. It is the government's behavior that has to change to put him in compliance with his alleged religious beliefs, not his own behavior. Government wants him to pay $X to his wife, and he says he is perfectly willing to pay $X to his wife. But first, the government has to do something that he says is required by his religion. That is the essence of Lyng and Bowen. He is not trying to insulate his own behavior from regulation; he is trying to control the government's behavior. Quoting Volokh, Eugene [EMAIL PROTECTED]: Well, I thought about Bowen v. Roy, but my sense is that the internal procedures point there was that the Roys weren't required to actually do anything that violated their religious beliefs (the government had stopped demanding that they provide Roy's social security number, and five Justices took the view that the government indeed had a constitutional obligation to so stop). The Roys just thought that the government's practice of giving Roy a number was spiritually harmful. Here, the claimant seems to be arguing not that it's bad for the government to have a section 666 in its statutes, but that it violates his religion to comply with orders issued under that section. Presumably, if the government copied or moved this to section 777, then he'd be OK with complying, not because the government changed its internal procedures, but because the action that he would be required to do would no longer be pursuant to a statute numbered with the number of the beast. So that seems different from Bowen v. Roy, no? Eugene Tom Berg writes: To the extent that he objects to paying the support even if the provision is renumbered, because the requirement is of the antichrist and the 666 simply evidences that, then I assume most courts would hold there's a burden but it's overcome by a compelling interest. To the extent he says his objection would be cured by renumbering the provision, then doesn't this seem like Bowen v. Roy -- and therefore not a cognizable burden -- in that the numbering of a statute is a matter of the government's internal procedures like the assignment of a social security number in Roy? If renumbering the provision would meet the objection, then the objection seems separable from the payment requirement itself and thus (arguably) concerns an internal government matter. It's not clear how much the Roy principle applies to RFRAs, but this might be the explanation for rejecting his claim that fits best into the previous law. ___ 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: Religious freedom and 42 USC 666
Might it not be helpful in this context to look first at what the specific religious exercise is that is being burdened? That has the virtue of focusing the court's analysis while avoiding the vice of a forbidden centrality analysis. See Greene v. Solano County Jail, 513 F.3d 982, 988 (9th Cir. 2008). In Sherrod's case, I don't see any specific religious exercise that he can claim is being burdened. In the Lyng-like Navajo Nation case currently before the Ninth Circuit en banc, by contrast, I think the Navajo have a stronger claim than Sherrod does, since they have described specific religious exercises that are burdened by the government's action in allowing reclaimed sewage to be sprayed on mountains where they conduct religious ceremonies. Re Tom's question earlier, if San Francisco passed a law (rather than a resolution) saying Santeria is a false religion then I think the 9th Circuit said in AFA v SF that it might have decided it the other way. And under Lukumi it seems fairly clear that any such law would give rise to a colorable Free Exercise claim based on intentional discrimination. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 10:59 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Doug: I much appreciate your responses, and you may well be right. But I'm just not quite sure about the distinction between an objection to any behavior demanded of him and an objection to the government's behavior. As I understand it, his objection is to both, or rather to the latter through the former. He says, I object to your demanding that I go along with these things that are pursuant to 42 USC 666. He's not just saying that there's something wrong with the government's keeping records on him in room 666; he's saying that he refuses to go along with what the government demands of him, because the demand is made under 42 USC 666. Indeed, in the process he's objecting to the government's behavior, but the root of it is precisely the objection to what's demanded of him -- something that wasn't the case in what remained of Bowen, or for that matter in Lyng. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, July 31, 2008 7:51 PM To: religionlaw@lists.ucla.edu Subject: RE: Religious freedom and 42 USC 666 I understand that difference. It shows that the line is not perfectly clean. few lines are. But fundamentally, this guy's religious objection is not to any behavior demanded of him. It is to the government's behavior. He says, I'll pay my child support if you the government renumber your statutes. It is the government's behavior that has to change to put him in compliance with his alleged religious beliefs, not his own behavior. Government wants him to pay $X to his wife, and he says he is perfectly willing to pay $X to his wife. But first, the government has to do something that he says is required by his religion. That is the essence of Lyng and Bowen. He is not trying to insulate his own behavior from regulation; he is trying to control the government's behavior. Quoting Volokh, Eugene [EMAIL PROTECTED]: Well, I thought about Bowen v. Roy, but my sense is that the internal procedures point there was that the Roys weren't required to actually do anything that violated their religious beliefs (the government had stopped demanding that they provide Roy's social security number, and five Justices took the view that the government indeed had a constitutional obligation to so stop). The Roys just thought that the government's practice of giving Roy a number was spiritually harmful. Here, the claimant seems to be arguing not that it's bad for the government to have a section 666 in its statutes, but that it violates his religion to comply with orders issued under that section. Presumably, if the government copied or moved this to section 777, then he'd be OK with complying, not because the government changed its internal procedures, but because the action that he would be required to do would no longer be pursuant to a statute numbered with the number of the beast. So that seems different from Bowen v. Roy, no? Eugene Tom Berg writes: To the extent that he objects to paying the support even if the provision is renumbered, because the requirement is of the antichrist and the 666 simply evidences that, then I assume most courts would hold there's a burden but it's overcome by a compelling interest. To the extent he says his objection would be cured by renumbering the provision, then doesn't this seem like Bowen v. Roy -- and therefore not a cognizable burden -- in that the numbering of a statute is a matter of the government's internal procedures like the assignment of a social security number in Roy
RE: Religious freedom and 42 USC 666
Actually, I think the same combined elements were present in Bowen, even with the social security number already in the government's hands - the claimant objected to participating in the program by applying for and receiving benefits that would, in his view, rob the child's soul because the government would be using a social security number and not her name. So, in effect, he was objecting to what was being demanded of him - applying for at least receiving benefits, cashing checks, using the money, etc. - in light of what the government was doing internally. Right? That said, I think Doug's explanation of the internal operations cases is quite cogent. Dan Conkle *** Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] *** From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 10:59 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Doug: I much appreciate your responses, and you may well be right. But I'm just not quite sure about the distinction between an objection to any behavior demanded of him and an objection to the government's behavior. As I understand it, his objection is to both, or rather to the latter through the former. He says, I object to your demanding that I go along with these things that are pursuant to 42 USC 666. He's not just saying that there's something wrong with the government's keeping records on him in room 666; he's saying that he refuses to go along with what the government demands of him, because the demand is made under 42 USC 666. Indeed, in the process he's objecting to the government's behavior, but the root of it is precisely the objection to what's demanded of him -- something that wasn't the case in what remained of Bowen, or for that matter in Lyng. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, July 31, 2008 7:51 PM To: religionlaw@lists.ucla.edu Subject: RE: Religious freedom and 42 USC 666 I understand that difference. It shows that the line is not perfectly clean. few lines are. But fundamentally, this guy's religious objection is not to any behavior demanded of him. It is to the government's behavior. He says, I'll pay my child support if you the government renumber your statutes. It is the government's behavior that has to change to put him in compliance with his alleged religious beliefs, not his own behavior. Government wants him to pay $X to his wife, and he says he is perfectly willing to pay $X to his wife. But first, the government has to do something that he says is required by his religion. That is the essence of Lyng and Bowen. He is not trying to insulate his own behavior from regulation; he is trying to control the government's behavior. Quoting Volokh, Eugene [EMAIL PROTECTED]: Well, I thought about Bowen v. Roy, but my sense is that the internal procedures point there was that the Roys weren't required to actually do anything that violated their religious beliefs (the government had stopped demanding that they provide Roy's social security number, and five Justices took the view that the government indeed had a constitutional obligation to so stop). The Roys just thought that the government's practice of giving Roy a number was spiritually harmful. Here, the claimant seems to be arguing not that it's bad for the government to have a section 666 in its statutes, but that it violates his religion to comply with orders issued under that section. Presumably, if the government copied or moved this to section 777, then he'd be OK with complying, not because the government changed its internal procedures, but because the action that he would be required to do would no longer be pursuant to a statute numbered with the number of the beast. So that seems different from Bowen v. Roy, no? Eugene Tom Berg writes: To the extent that he objects to paying the support even if the provision is renumbered, because the requirement is of the antichrist and the 666 simply evidences that, then I assume most courts would hold there's a burden but it's overcome by a compelling interest. To the extent he says his objection would be cured by renumbering the provision, then doesn't this seem like Bowen v. Roy -- and therefore not a cognizable burden -- in that the numbering of a statute is a matter of the government's internal procedures like the assignment of a social security number in Roy? If renumbering the provision would meet the objection, then the objection seems separable from the payment requirement itself and thus (arguably) concerns
RE: Religious freedom and 42 USC 666
Perhaps Doug, Dan, and others are right that the case is enough like Bowen v. Roy to be disposed of by that precedent. But it seems to there is a specific religious exercise being burdened, in the sense of a specific religious prohibition that Sherrod doesn't want to violate: He thinks it's wrong for him to comply with orders issued under the Beast-numbered section, just as Thomas thought it was wrong for him to work on producing munitions, or Sherbert thought it was wrong for her to work on Saturdays. It's true that this is interference with a negative command (don't participate in Beast-authorized things) and not a positive command (do perform this particular ritual), but that distinction has rightly never made a difference in religious accommodation cases. Or am I missing something here? Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach Sent: Friday, August 01, 2008 8:19 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Might it not be helpful in this context to look first at what the specific religious exercise is that is being burdened? That has the virtue of focusing the court's analysis while avoiding the vice of a forbidden centrality analysis. See Greene v. Solano County Jail, 513 F.3d 982, 988 (9th Cir. 2008). In Sherrod's case, I don't see any specific religious exercise that he can claim is being burdened. In the Lyng-like Navajo Nation case currently before the Ninth Circuit en banc, by contrast, I think the Navajo have a stronger claim than Sherrod does, since they have described specific religious exercises that are burdened by the government's action in allowing reclaimed sewage to be sprayed on mountains where they conduct religious ceremonies. Re Tom's question earlier, if San Francisco passed a law (rather than a resolution) saying Santeria is a false religion then I think the 9th Circuit said in AFA v SF that it might have decided it the other way. And under Lukumi it seems fairly clear that any such law would give rise to a colorable Free Exercise claim based on intentional discrimination. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 10:59 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Doug: I much appreciate your responses, and you may well be right. But I'm just not quite sure about the distinction between an objection to any behavior demanded of him and an objection to the government's behavior. As I understand it, his objection is to both, or rather to the latter through the former. He says, I object to your demanding that I go along with these things that are pursuant to 42 USC 666. He's not just saying that there's something wrong with the government's keeping records on him in room 666; he's saying that he refuses to go along with what the government demands of him, because the demand is made under 42 USC 666. Indeed, in the process he's objecting to the government's behavior, but the root of it is precisely the objection to what's demanded of him -- something that wasn't the case in what remained of Bowen, or for that matter in Lyng. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, July 31, 2008 7:51 PM To: religionlaw@lists.ucla.edu Subject: RE: Religious freedom and 42 USC 666 I understand that difference. It shows that the line is not perfectly clean. few lines are. But fundamentally, this guy's religious objection is not to any behavior demanded of him. It is to the government's behavior. He says, I'll pay my child support if you the government renumber your statutes. It is the government's behavior that has to change to put him in compliance with his alleged religious beliefs, not his own behavior. Government wants him to pay $X to his wife, and he says he is perfectly willing to pay $X to his wife. But first, the government has to do something that he says is required by his religion. That is the essence of Lyng and Bowen. He is not trying to insulate his own behavior from regulation; he is trying to control the government's behavior. Quoting Volokh, Eugene [EMAIL PROTECTED]: Well, I thought about Bowen v. Roy, but my sense is that the internal procedures point there was that the Roys weren't required to actually do anything that violated their religious beliefs (the government had
RE: Religious freedom and 42 USC 666
As Eugene suggests, I think the burden, in reality, is indeed no different than in other contexts. What's different is the unmanageability of such claims, so it's something of a legal fiction to say that there is no burden. Better, perhaps, to say that there is no *constitutionally cognizable* burden, which is language the Supreme Court itself has used, if I'm not mistaken. Dan Conkle *** Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] *** From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 11:42 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Perhaps Doug, Dan, and others are right that the case is enough like Bowen v. Roy to be disposed of by that precedent. But it seems to there is a specific religious exercise being burdened, in the sense of a specific religious prohibition that Sherrod doesn't want to violate: He thinks it's wrong for him to comply with orders issued under the Beast-numbered section, just as Thomas thought it was wrong for him to work on producing munitions, or Sherbert thought it was wrong for her to work on Saturdays. It's true that this is interference with a negative command (don't participate in Beast-authorized things) and not a positive command (do perform this particular ritual), but that distinction has rightly never made a difference in religious accommodation cases. Or am I missing something here? Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach Sent: Friday, August 01, 2008 8:19 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Might it not be helpful in this context to look first at what the specific religious exercise is that is being burdened? That has the virtue of focusing the court's analysis while avoiding the vice of a forbidden centrality analysis. See Greene v. Solano County Jail, 513 F.3d 982, 988 (9th Cir. 2008). In Sherrod's case, I don't see any specific religious exercise that he can claim is being burdened. In the Lyng-like Navajo Nation case currently before the Ninth Circuit en banc, by contrast, I think the Navajo have a stronger claim than Sherrod does, since they have described specific religious exercises that are burdened by the government's action in allowing reclaimed sewage to be sprayed on mountains where they conduct religious ceremonies. Re Tom's question earlier, if San Francisco passed a law (rather than a resolution) saying Santeria is a false religion then I think the 9th Circuit said in AFA v SF that it might have decided it the other way. And under Lukumi it seems fairly clear that any such law would give rise to a colorable Free Exercise claim based on intentional discrimination. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 10:59 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Doug: I much appreciate your responses, and you may well be right. But I'm just not quite sure about the distinction between an objection to any behavior demanded of him and an objection to the government's behavior. As I understand it, his objection is to both, or rather to the latter through the former. He says, I object to your demanding that I go along with these things that are pursuant to 42 USC 666. He's not just saying that there's something wrong with the government's keeping records on him in room 666; he's saying that he refuses to go along with what the government demands of him, because the demand is made under 42 USC 666. Indeed, in the process he's objecting to the government's behavior, but the root of it is precisely the objection to what's demanded of him -- something that wasn't the case in what remained of Bowen, or for that matter in Lyng. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, July 31, 2008 7:51 PM To: religionlaw@lists.ucla.edu Subject: RE: Religious freedom and 42 USC 666 I understand that difference. It shows that the line is not perfectly clean. few lines are. But fundamentally, this guy's religious objection is not to any behavior demanded of him. It is to the government's behavior. He says, I'll pay my child support if you the government renumber your statutes. It is the government's behavior that has to change to put him in compliance with his alleged religious beliefs, not his own behavior. Government wants him to pay $X to his wife, and he says he is perfectly willing to pay $X to his wife
RE: Religious freedom and 42 USC 666
The line delineating kinds of burdens here gets pretty thin. Is Sherrod claiming a right not to participate in Beast-authorized things or a right not to associate with the Mark of the Beast? The latter could be incredibly broad. Under your analysis, Eugene, would there be a difference between these two arguments? What if someone argued that it violated their faith to comply with laws voted on by non-believers (of their particular religion]? Mike Newdow has a RFRA claim before the Ninth circuit (I think it is still pending) in which he claims that having In God We Trust on currency violates his ability to exercise his religion. (He asserts a religion of Atheism in the case.) Newdow argues that the members of his Church can't even pass the plate to collect donations during services without being forced to communicate a message that repudiates their beliefs. Does that raise a cognizable RFRA or free exercise claim, Eugene? This issue may be more commonly addressed under the Establishment Clause, Tom. Does that mean there isn't a free exercise issue here as well? Alan Brownstein UC Davis School of Law From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 8:42 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Perhaps Doug, Dan, and others are right that the case is enough like Bowen v. Roy to be disposed of by that precedent. But it seems to there is a specific religious exercise being burdened, in the sense of a specific religious prohibition that Sherrod doesn't want to violate: He thinks it's wrong for him to comply with orders issued under the Beast-numbered section, just as Thomas thought it was wrong for him to work on producing munitions, or Sherbert thought it was wrong for her to work on Saturdays. It's true that this is interference with a negative command (don't participate in Beast-authorized things) and not a positive command (do perform this particular ritual), but that distinction has rightly never made a difference in religious accommodation cases. Or am I missing something here? Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach Sent: Friday, August 01, 2008 8:19 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Might it not be helpful in this context to look first at what the specific religious exercise is that is being burdened? That has the virtue of focusing the court's analysis while avoiding the vice of a forbidden centrality analysis. See Greene v. Solano County Jail, 513 F.3d 982, 988 (9th Cir. 2008). In Sherrod's case, I don't see any specific religious exercise that he can claim is being burdened. In the Lyng-like Navajo Nation case currently before the Ninth Circuit en banc, by contrast, I think the Navajo have a stronger claim than Sherrod does, since they have described specific religious exercises that are burdened by the government's action in allowing reclaimed sewage to be sprayed on mountains where they conduct religious ceremonies. Re Tom's question earlier, if San Francisco passed a law (rather than a resolution) saying Santeria is a false religion then I think the 9th Circuit said in AFA v SF that it might have decided it the other way. And under Lukumi it seems fairly clear that any such law would give rise to a colorable Free Exercise claim based on intentional discrimination. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 10:59 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Doug: I much appreciate your responses, and you may well be right. But I'm just not quite sure about the distinction between an objection to any behavior demanded of him and an objection to the government's behavior. As I understand it, his objection is to both, or rather to the latter through the former. He says, I object to your demanding that I go along with these things that are pursuant to 42 USC 666. He's not just saying that there's something wrong with the government's keeping records on him in room 666; he's saying that he refuses to go along with what the government demands of him, because the demand is made under 42 USC 666. Indeed, in the process he's objecting to the government's behavior, but the root of it is precisely the objection to what's demanded of him -- something that wasn't the case in what remained of Bowen, or for that matter in Lyng. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, July 31, 2008 7:51 PM To: religionlaw@lists.ucla.edu Subject: RE: Religious freedom and 42 USC 666 I understand that difference. It shows that the line is not perfectly clean. few lines
RE: Religious freedom and 42 USC 666
I'm inclined to say that Sherrod's claim is, as the court characterizes it, that it is wrong to submit to an order which relies for its authority upon a federal statute, 42 USC 666, or, put another way, to cooperate in any way with the State's attempt to enforce his obligation of child support [using that statute]. It's hard for me to see why requiring one to submit such an order wouldn't be a substantial burden, but requiring one to work on munitions would be. As to the Newdow claim, the matter is complex, because he's not strictly required to use government currency, and these days might not even be practically required, since he could ask people to write checks. Rather, if his claim is that it is spiritually prohibited to him (and not just offensive to him) to use currency with God's name on it, he would also have to show that the government's action in coercively prohibiting rival currency is what's causing the interference with his religious practice. Finally, if someone thinks that God forbids him from complying with laws voted on by nonbelievers, then it seems to me that ordering such compliance would certainly substantially burden his religion -- there just wouldn't be any less restrictive alternatives that don't themselves cause serious constitutional problems. But as to 42 USC 666, there is a pretty simple alternative -- create a copy of the statute in 42 USC 777 (or some such). From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan Sent: Friday, August 01, 2008 9:48 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 The line delineating kinds of burdens here gets pretty thin. Is Sherrod claiming a right not to participate in Beast-authorized things or a right not to associate with the Mark of the Beast? The latter could be incredibly broad. Under your analysis, Eugene, would there be a difference between these two arguments? What if someone argued that it violated their faith to comply with laws voted on by non-believers (of their particular religion]? Mike Newdow has a RFRA claim before the Ninth circuit (I think it is still pending) in which he claims that having In God We Trust on currency violates his ability to exercise his religion. (He asserts a religion of Atheism in the case.) Newdow argues that the members of his Church can't even pass the plate to collect donations during services without being forced to communicate a message that repudiates their beliefs. Does that raise a cognizable RFRA or free exercise claim, Eugene? This issue may be more commonly addressed under the Establishment Clause, Tom. Does that mean there isn't a free exercise issue here as well? Alan Brownstein UC Davis School of Law From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 8:42 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Perhaps Doug, Dan, and others are right that the case is enough like Bowen v. Roy to be disposed of by that precedent. But it seems to there is a specific religious exercise being burdened, in the sense of a specific religious prohibition that Sherrod doesn't want to violate: He thinks it's wrong for him to comply with orders issued under the Beast-numbered section, just as Thomas thought it was wrong for him to work on producing munitions, or Sherbert thought it was wrong for her to work on Saturdays. It's true that this is interference with a negative command (don't participate in Beast-authorized things) and not a positive command (do perform this particular ritual), but that distinction has rightly never made a difference in religious accommodation cases. Or am I missing something here? Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach Sent: Friday, August 01, 2008 8:19 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Might it not be helpful in this context to look first at what the specific religious exercise is that is being burdened? That has the virtue of focusing the court's analysis while avoiding the vice of a forbidden centrality analysis. See Greene v. Solano County Jail, 513 F.3d 982, 988 (9th Cir. 2008). In Sherrod's case, I don't see any specific religious exercise that he can claim is being burdened. In the Lyng-like Navajo Nation case currently before the Ninth Circuit en banc, by contrast, I think the Navajo have a stronger claim than Sherrod does, since
RE: Religious freedom and 42 USC 666
I appreciate the concerns about the manageability of such claims, but I wonder exactly what we mean by unmanageability. Most granted exemption requests generally require considerable changes to government procedures -- the government may have to set up hearing mechanisms, alternative surveillance and investigation mechanisms that are needed to serve its interests (consider some of the proposed alternatives in the peyote case, aimed at making sure the peyote is indeed used responsibly, children can't get access to it, and the like), schemes for informing employees about what the rules are, devices for making sure that the rules are applied fairly, and so on. Here, by comparison, the change is high-level (it requires a Congressional act) but otherwise relatively cheap: Copy 42 USC 666 to 42 USC 777. Or is the concern one about management of subsequent claims by others who have other objections? That concern, after all, arises often with regard to traditional exemption requests, too. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Conkle, Daniel O. Sent: Friday, August 01, 2008 8:57 AM To: 'Law Religion issues for Law Academics' Subject: RE: Religious freedom and 42 USC 666 As Eugene suggests, I think the burden, in reality, is indeed no different than in other contexts. What's different is the unmanageability of such claims, so it's something of a legal fiction to say that there is no burden. Better, perhaps, to say that there is no *constitutionally cognizable* burden, which is language the Supreme Court itself has used, if I'm not mistaken. Dan Conkle *** Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] *** From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 11:42 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Perhaps Doug, Dan, and others are right that the case is enough like Bowen v. Roy to be disposed of by that precedent. But it seems to there is a specific religious exercise being burdened, in the sense of a specific religious prohibition that Sherrod doesn't want to violate: He thinks it's wrong for him to comply with orders issued under the Beast-numbered section, just as Thomas thought it was wrong for him to work on producing munitions, or Sherbert thought it was wrong for her to work on Saturdays. It's true that this is interference with a negative command (don't participate in Beast-authorized things) and not a positive command (do perform this particular ritual), but that distinction has rightly never made a difference in religious accommodation cases. Or am I missing something here? Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach Sent: Friday, August 01, 2008 8:19 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Might it not be helpful in this context to look first at what the specific religious exercise is that is being burdened? That has the virtue of focusing the court's analysis while avoiding the vice of a forbidden centrality analysis. See Greene v. Solano County Jail, 513 F.3d 982, 988 (9th Cir. 2008). In Sherrod's case, I don't see any specific religious exercise that he can claim is being burdened. In the Lyng-like Navajo Nation case currently before the Ninth Circuit en banc, by contrast, I think the Navajo have a stronger claim than Sherrod does, since they have described specific religious exercises that are burdened by the government's action in allowing reclaimed sewage to be sprayed on mountains where they conduct religious ceremonies. Re Tom's question earlier, if San Francisco passed a law (rather than a resolution) saying Santeria is a false religion then I think the 9th Circuit said in AFA v SF that it might have decided it the other way. And under Lukumi it seems fairly clear that any such law would give rise to a colorable Free Exercise claim based on intentional discrimination. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 10:59 AM To: Law
RE: Religious freedom and 42 USC 666
It is worth noting that, although the opinion is a bit unclear, the actual penalty imposed on Sherrod for failing to comply with the lower court's order to send his child support payments to the state DHS (in compliance with state laws required in turn by Section 666) appears to be that he will have his federal income tax refund intercepted. The refund would be offset against the child support amounts he owes and already agrees he should pay to his wife. So arguably there's no burden at all since he hasn't suffered any detriment for failing to cooperate with the Section 666-inspired order. And my guess is that intercepting his tax refund is also more manageable for the government than changing 42 USC 666 to 42 USC 777 would be. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 1:19 PM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 I appreciate the concerns about the manageability of such claims, but I wonder exactly what we mean by unmanageability. Most granted exemption requests generally require considerable changes to government procedures -- the government may have to set up hearing mechanisms, alternative surveillance and investigation mechanisms that are needed to serve its interests (consider some of the proposed alternatives in the peyote case, aimed at making sure the peyote is indeed used responsibly, children can't get access to it, and the like), schemes for informing employees about what the rules are, devices for making sure that the rules are applied fairly, and so on. Here, by comparison, the change is high-level (it requires a Congressional act) but otherwise relatively cheap: Copy 42 USC 666 to 42 USC 777. Or is the concern one about management of subsequent claims by others who have other objections? That concern, after all, arises often with regard to traditional exemption requests, too. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Conkle, Daniel O. Sent: Friday, August 01, 2008 8:57 AM To: 'Law Religion issues for Law Academics' Subject: RE: Religious freedom and 42 USC 666 As Eugene suggests, I think the burden, in reality, is indeed no different than in other contexts. What's different is the unmanageability of such claims, so it's something of a legal fiction to say that there is no burden. Better, perhaps, to say that there is no *constitutionally cognizable* burden, which is language the Supreme Court itself has used, if I'm not mistaken. Dan Conkle *** Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] *** From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 11:42 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Perhaps Doug, Dan, and others are right that the case is enough like Bowen v. Roy to be disposed of by that precedent. But it seems to there is a specific religious exercise being burdened, in the sense of a specific religious prohibition that Sherrod doesn't want to violate: He thinks it's wrong for him to comply with orders issued under the Beast-numbered section, just as Thomas thought it was wrong for him to work on producing munitions, or Sherbert thought it was wrong for her to work on Saturdays. It's true that this is interference with a negative command (don't participate in Beast-authorized things) and not a positive command (do perform this particular ritual), but that distinction has rightly never made a difference in religious accommodation cases. Or am I missing something here? Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach Sent: Friday, August 01, 2008 8:19 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Might it not be helpful in this context to look first at what the specific religious exercise is that is being burdened? That has the virtue of focusing the court's analysis while avoiding the vice of a forbidden centrality analysis. See Greene v. Solano County Jail, 513 F.3d 982, 988 (9th Cir. 2008). In Sherrod's case, I don't see any specific religious exercise that he can claim is being burdened. In the Lyng-like Navajo Nation case currently before the Ninth Circuit en banc, by contrast, I think the Navajo have a stronger claim than Sherrod does, since they have described specific religious exercises that are burdened by the government's action in allowing reclaimed sewage to be sprayed on mountains where they conduct religious ceremonies. Re Tom's question
RE: Religious freedom and 42 USC 666
Perhaps this is indeed so on the facts of this particular case; but I take it in a future case, there might be no tax refund to offset this against, no? Eugene Eric Rassbach writes: From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach Sent: Friday, August 01, 2008 10:34 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 It is worth noting that, although the opinion is a bit unclear, the actual penalty imposed on Sherrod for failing to comply with the lower court's order to send his child support payments to the state DHS (in compliance with state laws required in turn by Section 666) appears to be that he will have his federal income tax refund intercepted. The refund would be offset against the child support amounts he owes and already agrees he should pay to his wife. So arguably there's no burden at all since he hasn't suffered any detriment for failing to cooperate with the Section 666-inspired order. And my guess is that intercepting his tax refund is also more manageable for the government than changing 42 USC 666 to 42 USC 777 would be. ___ 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: Religious freedom and 42 USC 666
I'm not even sure the necessary change would require an Act of Congress. Someone can correct me if I'm wrong, but I don't think a statute's codification in the US Code is generally a part of the bill enacted by Congress. If you look at the Statutes at Large, you'll see the future codification in the margin, not in the text. I think codification is just an administrative function. And I assume it would be sufficient for the father here if 42 USC § 666 were changed to 42 USC § 665a, so it wouldn't even have to be moved to a different position in the books. Art Spitzer ACLU Washington DC In a message dated 8/1/08 1:19:42 PM, [EMAIL PROTECTED] writes: Here, by comparison, the change is high-level (it requires a Congressional act) but otherwise relatively cheap: Copy 42 USC 666 to 42 USC 777. ** Looking for a car that's sporty, fun and fits in your budget? Read reviews on AOL Autos. (http://autos.aol.com/cars-BMW-128-2008/expert-review?ncid=aolaut000517 ) ___ 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: Religious freedom and 42 USC 666
True, but after that I imagine the government would put a lien on his personal property or use other methods short of prison to enforce the judgment against him. Since he's agreed that he is obligated to pay, and would having no problem paying his wife or the trial court directly, none of these methods of extracting child support payments from him without his cooperation would seem to burden his religious exercise, precisely because it is mere cooperation with one part of the government that he feels would violate his religious beliefs. A harder question under SB would be if he had a sincere belief that he should not pay child support at all; but that would likely be disposed of under the CGI/LRM analysis. It seems important in substantial burden cases, be it under RFRA, state RFRAs, RLUIPA or Sherbert/Yoder, for courts to first look at what the specific claimed religious exercise (negative or positive) is, whether that exercise is sincere, and what the burden or penalty imposed for engaging in the exercise is. A lot of the claimed problems with RLUIPA and the RFRAs disappear if these standards are applied universally, especially when the relative prevalence of different classes of cases is factored in. For example, lack of sincerity is something that should eliminate a significant number of prisoner RLUIPA claims, but prison systems and courts have been reluctant to uniformly apply that standard before reaching the SB analysis. If a sincerity filter were applied regularly by prison systems and the courts, then a number of harder RLUIPA prisoner cases would be eliminated without raising unnecessary SB or constitutional questions. (Perhaps even Sherrod's case would have been eliminated.) Also, in my view the occasional accommodation of a sincere Sherrod-like plaintiff who could demonstrate a true burden would seem to be worth the benefit of protecting the religious liberty of a great number of people. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, August 01, 2008 1:42 PM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Perhaps this is indeed so on the facts of this particular case; but I take it in a future case, there might be no tax refund to offset this against, no? Eugene Eric Rassbach writes: From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach Sent: Friday, August 01, 2008 10:34 AM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 It is worth noting that, although the opinion is a bit unclear, the actual penalty imposed on Sherrod for failing to comply with the lower court's order to send his child support payments to the state DHS (in compliance with state laws required in turn by Section 666) appears to be that he will have his federal income tax refund intercepted. The refund would be offset against the child support amounts he owes and already agrees he should pay to his wife. So arguably there's no burden at all since he hasn't suffered any detriment for failing to cooperate with the Section 666-inspired order. And my guess is that intercepting his tax refund is also more manageable for the government than changing 42 USC 666 to 42 USC 777 would be. ___ 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: Religious freedom and 42 USC 666
Except that sometimes, I think the drafters do it right in the bill. If they are amending existing legislation that has already been numbered, and they are inserting new sections, I think that the bill sometimes numbers those sections. So Section 2 of the bill may amend section 665 of the existing Act and add a new section 666. I'm pretty sure I've seen examples of this, although I can't swear to it. If the bill number is created by an Act of Congress, then I suppose it takes another Act of Congress to change it. Which is why you occasionally see bills to correct typos. Quoting Corcos, Christine [EMAIL PROTECTED]: I think it's done by the Office of the Law Revision Counsel of the U.S. House of Representatives. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Friday, August 01, 2008 2:01 PM To: religionlaw@lists.ucla.edu Subject: Re: Religious freedom and 42 USC 666 I'm not even sure the necessary change would require an Act of Congress. Someone can correct me if I'm wrong, but I don't think a statute's codification in the US Code is generally a part of the bill enacted by Congress. If you look at the Statutes at Large, you'll see the future codification in the margin, not in the text. I think codification is just an administrative function. And I assume it would be sufficient for the father here if 42 USC § 666 were changed to 42 USC § 665a, so it wouldn't even have to be moved to a different position in the books. Art Spitzer ACLU Washington DC In a message dated 8/1/08 1:19:42 PM, [EMAIL PROTECTED] writes: Here, by comparison, the change is high-level (it requires a Congressional act) but otherwise relatively cheap: Copy 42 USC 666 to 42 USC 777. ** Looking for a car that's sporty, fun and fits in your budget? Read reviews on AOL Autos. (http://autos.aol.com/cars-BMW-128-2008/expert-review?ncid=aolaut000517[1] ) Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 Links: -- [1] http://autos.aol.com/cars-BMW-128-2008/expert-review?ncid=aolaut000517___ 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: Religious freedom and 42 USC 666
Yes, I think what Prof. Laycock says is also true. And it's probably true that if congressional action were needed, a change from 666 to 665a could be included in a long list of technical corrections attached to some omnibus bill, and no Member would even notice it. But I'm not sure a court could order Congress to do that, while a court could (at least more likely could) order the Office of the Law Revision Counsel to make such a change. But I suppose I'm straying from religion and the law. Art Spitzer In a message dated 8/1/08 3:35:27 PM, [EMAIL PROTECTED] writes: Except that sometimes, I think the drafters do it right in the bill. If they are amending existing legislation that has already been numbered, and they are inserting new sections, I think that the bill sometimes numbers those sections. So Section 2 of the bill may amend section 665 of the existing Act and add a new section 666. I'm pretty sure I've seen examples of this, although I can't swear to it. If the bill number is created by an Act of Congress, then I suppose it takes another Act of Congress to change it. Which is why you occasionally see bills to correct typos. ** Looking for a car that's sporty, fun and fits in your budget? Read reviews on AOL Autos. (http://autos.aol.com/cars-BMW-128-2008/expert-review?ncid=aolaut000517 ) ___ 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: Religious freedom and 42 USC 666
In Dr. Newdow's challenges to the Pledge of Allegiance (codified at 4 U.S.C. Section 4) he has sued both the United States Congress and the Law Revision Counsel, and has sought an order that the Law Revision Counsel strike the words under God from that Section. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Friday, August 01, 2008 3:45 PM To: religionlaw@lists.ucla.edu Subject: Re: Religious freedom and 42 USC 666 Yes, I think what Prof. Laycock says is also true. And it's probably true that if congressional action were needed, a change from 666 to 665a could be included in a long list of technical corrections attached to some omnibus bill, and no Member would even notice it. But I'm not sure a court could order Congress to do that, while a court could (at least more likely could) order the Office of the Law Revision Counsel to make such a change. But I suppose I'm straying from religion and the law. Art Spitzer In a message dated 8/1/08 3:35:27 PM, [EMAIL PROTECTED] writes: Except that sometimes, I think the drafters do it right in the bill. If they are amending existing legislation that has already been numbered, and they are inserting new sections, I think that the bill sometimes numbers those sections. So Section 2 of the bill may amend section 665 of the existing Act and add a new section 666. I'm pretty sure I've seen examples of this, although I can't swear to it. If the bill number is created by an Act of Congress, then I suppose it takes another Act of Congress to change it. Which is why you occasionally see bills to correct typos. ** Looking for a car that's sporty, fun and fits in your budget? Read reviews on AOL Autos. (http://autos.aol.com/cars-BMW-128-2008/expert-review?ncid=aolaut000517 ) ___ 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.
Religious freedom and 42 USC 666
Sherrod v. Tenn. Dep't of Human Servs., 2008 WL 2894691 (Tenn. Ct. App.), involves a father who refused to pay his child support, partly because Mr. Sherrod states that he is a Born Again Christian and a Sunday School teacher and that he is greatly disturbed that DHS is attempting to compel him to submit to an order which relies for its authority upon a federal statute, 42 USC sec. 666. He cites us to the Book of Revelations, where the number 666 is associated with the 'Mark of the Beast' and the end of days. Assume Sherrod is sincere, not implausible given his willingness to fight the matter at trial and on appeal over $1,188 in arrearages (granted, he's litigating pro se, but this presumably has taken a good deal of time and effort, and some money, on his part). Assume also that a strict scrutiny regime applies. (Whether because Sherrod didn't raise RFRA or whether because for some reason RFRA is inapplicable givne the procedural posture, this particular court applied the Smith approach.) Should Sherrod prevail? I take it that the government could just reenact 42 USC sec. 666 as 42 USC sec. something-else, and thus alleviate the burden on Sherrod's religion; does that make enforcing 42 USC 666 not the least restrictive alternative? Or are alternatives that involve having Congress take the time and effort to renumber a statute (or enact a duplicate copy) just too burdensome to be considered as part of the least restrictive alternative inquiry (or are otherwise improper for consideration). I should say, by the way, that I don't think Sherrod should win as a matter of principles, nor do I think it likely that he would in fact win even under a RFRA-like regime. But that's partly because I support Smith, and while I support statutory RFRAs, I think strict scrutiny is the wrong standard for them to use. So I wanted to probe what ought to happen under a Sherbert/Yoder regime, as honestly applied. Eugene ___ 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: Religious freedom and 42 USC 666
Are you asking that we (a) assume that Sherbert/Yoder applies and (b) that Sherrod has met his burden of showing a substantial burden on religious exercise, or just (a)? -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Thursday, July 31, 2008 3:47 PM To: Law Religion issues for Law Academics Subject: Religious freedom and 42 USC 666 Sherrod v. Tenn. Dep't of Human Servs., 2008 WL 2894691 (Tenn. Ct. App.), involves a father who refused to pay his child support, partly because Mr. Sherrod states that he is a Born Again Christian and a Sunday School teacher and that he is greatly disturbed that DHS is attempting to compel him to submit to an order which relies for its authority upon a federal statute, 42 USC sec. 666. He cites us to the Book of Revelations, where the number 666 is associated with the 'Mark of the Beast' and the end of days. Assume Sherrod is sincere, not implausible given his willingness to fight the matter at trial and on appeal over $1,188 in arrearages (granted, he's litigating pro se, but this presumably has taken a good deal of time and effort, and some money, on his part). Assume also that a strict scrutiny regime applies. (Whether because Sherrod didn't raise RFRA or whether because for some reason RFRA is inapplicable givne the procedural posture, this particular court applied the Smith approach.) Should Sherrod prevail? I take it that the government could just reenact 42 USC sec. 666 as 42 USC sec. something-else, and thus alleviate the burden on Sherrod's religion; does that make enforcing 42 USC 666 not the least restrictive alternative? Or are alternatives that involve having Congress take the time and effort to renumber a statute (or enact a duplicate copy) just too burdensome to be considered as part of the least restrictive alternative inquiry (or are otherwise improper for consideration). I should say, by the way, that I don't think Sherrod should win as a matter of principles, nor do I think it likely that he would in fact win even under a RFRA-like regime. But that's partly because I support Smith, and while I support statutory RFRAs, I think strict scrutiny is the wrong standard for them to use. So I wanted to probe what ought to happen under a Sherbert/Yoder regime, as honestly applied. Eugene ___ 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. ___ 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: Religious freedom and 42 USC 666
*blink* OK, this guy wins the Most Creative Deadbeat Dad of the Year award. Forgive me, Eugene, but there is a limit to my ability to suspend disbelief. I simply find myself able to assume that this guy is sincere. I might be able to swallow it if he were to send a check to the mother of his children for the amount that he is in arrears instead of handing it over to the court. OK, ok, I'll give it my best shot: He should not prevail because he is not ordered to submit to the dictates of the beast bearing the number 666, he is being ordered to comply with *Federal Statute 42 USC Sec. 666*. Simply having a sequential number does not make a law the Beast of Revelations 13. Somebody kindly relieve me of my ignorance; is there any reason why Human Services can't use an argument against Sherrod's claim based on further context from the quoted text? Specifically, can the attorney point out that since Human Services has not required Mr. Sherrod to receive the mark of the beast on his hand or forehead, they cannot possibly be the beast? CF: He causes all, both small and great, rich and poor, free and slave, to receive a mark on their right hand or on their foreheads, and that no one may buy or sell except one who has the mark or the name of the beast, or the number of his name.” Revelation 13:16-17 Just askin'. Jean Dudley On Jul 31, 2008, at Thu, Jul 31, 12:46 PM, Volokh, Eugene wrote: Sherrod v. Tenn. Dep't of Human Servs., 2008 WL 2894691 (Tenn. Ct. App.), involves a father who refused to pay his child support, partly because Mr. Sherrod states that he is a Born Again Christian and a Sunday School teacher and that he is greatly disturbed that DHS is attempting to compel him to submit to an order which relies for its authority upon a federal statute, 42 USC sec. 666. He cites us to the Book of Revelations, where the number 666 is associated with the 'Mark of the Beast' and the end of days. Assume Sherrod is sincere, not implausible given his willingness to fight the matter at trial and on appeal over $1,188 in arrearages (granted, he's litigating pro se, but this presumably has taken a good deal of time and effort, and some money, on his part). Assume also that a strict scrutiny regime applies. (Whether because Sherrod didn't raise RFRA or whether because for some reason RFRA is inapplicable givne the procedural posture, this particular court applied the Smith approach.) Should Sherrod prevail? I take it that the government could just reenact 42 USC sec. 666 as 42 USC sec. something-else, and thus alleviate the burden on Sherrod's religion; does that make enforcing 42 USC 666 not the least restrictive alternative? Or are alternatives that involve having Congress take the time and effort to renumber a statute (or enact a duplicate copy) just too burdensome to be considered as part of the least restrictive alternative inquiry (or are otherwise improper for consideration). I should say, by the way, that I don't think Sherrod should win as a matter of principles, nor do I think it likely that he would in fact win even under a RFRA-like regime. But that's partly because I support Smith, and while I support statutory RFRAs, I think strict scrutiny is the wrong standard for them to use. So I wanted to probe what ought to happen under a Sherbert/Yoder regime, as honestly applied. Eugene ___ 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. ___ 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: Religious freedom and 42 USC 666
On Jul 31, 2008, at Thu, Jul 31, 2:57 PM, Volokh, Eugene wrote: Well, I do think that the relatively small amount at issue in the case -- and the great deal of effort he must have devoted -- is some evidence of sincerity. Cf. the court's statement that Similarly, before this court, Mr. Sherrod stated in oral argument that only one of the issues he raised in his brief is of importance to him, i.e., that the particular means chosen by the Department to enforce his obligation violates his religious beliefs. Mr. Sherrod declared that he believes that parents have an obligation to support their children, that appropriate legislation to enforce that duty of support in appropriate cases is warranted, and that the only reason he has chosen to appeal a judicial decision involving a relatively small sum of money is that his conscience requires it. Gonna have to respectfully disagree with you, Eugene. Amount of money spent avoiding child support often exceeds the amount owed, for the stated reason that fathers vindictively withhold funds in order to punish the estranged ex-spouse. I think this is the case here. Spite is a powerful motivator, IMO. He just doesn't have the guts to own his spitefulness. This is further born out by the fact that he neglected his financial responsibility until he was told to pay child support. But in any case, if the legal question is sincerity, there would have be to an evidentiary hearing, and if the trial judge is unwilling to conclude that Mr. Sherrod is insincere, then the sincerity question would be decided in Mr. Sherrod's favor, and our views and the appellate judges' views would be irrelevant. As to the rest of the argument below, I don't think it can work under Thomas v. Employment Division. It is not for a court to decide what's the best reading of Revelations, or whether the federal statute indeed sufficiently bears the mark of the beast, or whether mark of the beast should be read literally -- just as it's not for a court to decide whether someone who refuses to eat meat and milk is properly interpreting Thou shalt not seethe a kid in his mother's milk, or whether someone who refuses to work on tank turrets is properly interpreting his religion's commands of pacifism (that's the Thomas case itself). The question is whether Sherrod's religious belief is sincere, not whether it's a sensible interpretation of the Bible. Yes, I suppose that is a valid reason. In that case, sincerity shouldn't matter either, should it? The law is the law, regardless of the sequential number assigned to it. Moral obligation to uphold the law (in this case pay child support, and of course the moral obligation to pay child support as well) should over ride religious sincerity. In short, do the right and legal thing even if it is to an agent/agency of Satan. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Jean Dudley Sent: Thursday, July 31, 2008 1:14 PM To: Law Religion issues for Law Academics Subject: Re: Religious freedom and 42 USC 666 *blink* OK, this guy wins the Most Creative Deadbeat Dad of the Year award. Forgive me, Eugene, but there is a limit to my ability to suspend disbelief. I simply find myself able to assume that this guy is sincere. I might be able to swallow it if he were to send a check to the mother of his children for the amount that he is in arrears instead of handing it over to the court. OK, ok, I'll give it my best shot: He should not prevail because he is not ordered to submit to the dictates of the beast bearing the number 666, he is being ordered to comply with *Federal Statute 42 USC Sec. 666*. Simply having a sequential number does not make a law the Beast of Revelations 13. Somebody kindly relieve me of my ignorance; is there any reason why Human Services can't use an argument against Sherrod's claim based on further context from the quoted text? Specifically, can the attorney point out that since Human Services has not required Mr. Sherrod to receive the mark of the beast on his hand or forehead, they cannot possibly be the beast? CF: He causes all, both small and great, rich and poor, free and slave, to receive a mark on their right hand or on their foreheads, and that no one may buy or sell except one who has the mark or the name of the beast, or the number of his name. Revelation 13:16-17 Just askin'. Jean Dudley ___ 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
RE: Religious freedom and 42 USC 666
Jean Dudley writes: As to the rest of the argument below, I don't think it can work under Thomas v. Employment Division. It is not for a court to decide what's the best reading of Revelations, or whether the federal statute indeed sufficiently bears the mark of the beast, or whether mark of the beast should be read literally -- just as it's not for a court to decide whether someone who refuses to eat meat and milk is properly interpreting Thou shalt not seethe a kid in his mother's milk, or whether someone who refuses to work on tank turrets is properly interpreting his religion's commands of pacifism (that's the Thomas case itself). The question is whether Sherrod's religious belief is sincere, not whether it's a sensible interpretation of the Bible. Yes, I suppose that is a valid reason. In that case, sincerity shouldn't matter either, should it? The law is the law, regardless of the sequential number assigned to it. Moral obligation to uphold the law (in this case pay child support, and of course the moral obligation to pay child support as well) should over ride religious sincerity. In short, do the right and legal thing even if it is to an agent/agency of Satan. That's a perfectly plausible conclusion -- in fact it is the conclusion the Court reached in Smith. But federal and state RFRAs, and state constitutional provisions that have been interpreted as implementing a Sherbert-like regime, expressly assume the opposite. So the question is how the case should come out under those regimes. ___ 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: Religious freedom and 42 USC 666
That's a perfectly plausible conclusion -- in fact it is the conclusion the Court reached in Smith. But federal and state RFRAs, and state constitutional provisions that have been interpreted as implementing a Sherbert-like regime, expressly assume the opposite. So the question is how the case should come out under those regimes. Unfortunately, I must bow out of the dialog at this point because I am ignorant of Smith and Sherbert regimes. ___ 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: Religious freedom and 42 USC 666
Another thought occurs to me; If the law were to be renumbered, that would constitute an endorsement of religion. The angle here is to present the law as simply sequential according to the rules of mathematics, in order to avoid an establishment of religion. Do they skip the number 13 in the federal statutes? ___ 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: Religious freedom and 42 USC 666
Well, I suppose that's part of the question with any accommodation: When the government goes out of its way to accommodate people's religious objections -- by rearranging things to prevent coercive burdens on the people's religious beliefs -- is it therefore improperly endorsing the religion? Generally the answer seems to be no, see, e.g., Corporation of Presiding Bishop v. Amos, at least unless the action imposes a substantial burden on individual third parties (see, e.g., Estate of Thornton v. Caldor). What do others think? Would renumbering the section, or enacting a new section that mirrors the old, violate the Establishment Clause? (Would skipping the 13th floor, or offices numbered 666, in government-owned buildings?) Even if it wouldn't, would refusing to do so violate RFRA / Sherbert regimes? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Jean Dudley Sent: Thursday, July 31, 2008 3:24 PM To: Law Religion issues for Law Academics Subject: Re: Religious freedom and 42 USC 666 Another thought occurs to me; If the law were to be renumbered, that would constitute an endorsement of religion. The angle here is to present the law as simply sequential according to the rules of mathematics, in order to avoid an establishment of religion. Do they skip the number 13 in the federal statutes? ___ 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. ___ 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: Religious freedom and 42 USC 666
To the extent that he objects to paying the support even if the provision is renumbered, because the requirement is of the antichrist and the 666 simply evidences that, then I assume most courts would hold there's a burden but it's overcome by a compelling interest. To the extent he says his objection would be cured by renumbering the provision, then doesn't this seem like Bowen v. Roy -- and therefore not a cognizable burden -- in that the numbering of a statute is a matter of the government's internal procedures like the assignment of a social security number in Roy? If renumbering the provision would meet the objection, then the objection seems separable from the payment requirement itself and thus (arguably) concerns an internal government matter. It's not clear how much the Roy principle applies to RFRAs, but this might be the explanation for rejecting his claim that fits best into the previous law. Tom Berg University of St. Thomas School of Law (Minnesota) From: [EMAIL PROTECTED] on behalf of Volokh, Eugene Sent: Thu 7/31/2008 5:19 PM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Jean Dudley writes: As to the rest of the argument below, I don't think it can work under Thomas v. Employment Division. It is not for a court to decide what's the best reading of Revelations, or whether the federal statute indeed sufficiently bears the mark of the beast, or whether mark of the beast should be read literally -- just as it's not for a court to decide whether someone who refuses to eat meat and milk is properly interpreting Thou shalt not seethe a kid in his mother's milk, or whether someone who refuses to work on tank turrets is properly interpreting his religion's commands of pacifism (that's the Thomas case itself). The question is whether Sherrod's religious belief is sincere, not whether it's a sensible interpretation of the Bible. Yes, I suppose that is a valid reason. In that case, sincerity shouldn't matter either, should it? The law is the law, regardless of the sequential number assigned to it. Moral obligation to uphold the law (in this case pay child support, and of course the moral obligation to pay child support as well) should over ride religious sincerity. In short, do the right and legal thing even if it is to an agent/agency of Satan. That's a perfectly plausible conclusion -- in fact it is the conclusion the Court reached in Smith. But federal and state RFRAs, and state constitutional provisions that have been interpreted as implementing a Sherbert-like regime, expressly assume the opposite. So the question is how the case should come out under those regimes. ___ 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. ___ 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: Religious freedom and 42 USC 666
Well, I thought about Bowen v. Roy, but my sense is that the internal procedures point there was that the Roys weren't required to actually do anything that violated their religious beliefs (the government had stopped demanding that they provide Roy's social security number, and five Justices took the view that the government indeed had a constitutional obligation to so stop). The Roys just thought that the government's practice of giving Roy a number was spiritually harmful. Here, the claimant seems to be arguing not that it's bad for the government to have a section 666 in its statutes, but that it violates his religion to comply with orders issued under that section. Presumably, if the government copied or moved this to section 777, then he'd be OK with complying, not because the government changed its internal procedures, but because the action that he would be required to do would no longer be pursuant to a statute numbered with the number of the beast. So that seems different from Bowen v. Roy, no? Eugene Tom Berg writes: To the extent that he objects to paying the support even if the provision is renumbered, because the requirement is of the antichrist and the 666 simply evidences that, then I assume most courts would hold there's a burden but it's overcome by a compelling interest. To the extent he says his objection would be cured by renumbering the provision, then doesn't this seem like Bowen v. Roy -- and therefore not a cognizable burden -- in that the numbering of a statute is a matter of the government's internal procedures like the assignment of a social security number in Roy? If renumbering the provision would meet the objection, then the objection seems separable from the payment requirement itself and thus (arguably) concerns an internal government matter. It's not clear how much the Roy principle applies to RFRAs, but this might be the explanation for rejecting his claim that fits best into the previous law. ___ 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: Religious freedom and 42 USC 666
I think this case falls within NW Indian Cemetery v. Lying and Bowen v. Roy. I don't know how many of us there are, but I am one of the strong supporters of regulatory exemptions for free exercise who thinks that those cases make sense. Dad's asserted belief here is not not -- at least not in the first instance -- about his own behavior; it is about the government's behavior. He doesn't even have to put 666 on his check, or his paperwork. His objection is to what number the government can put on its statute. He may be sincere, and he may think he really can't pay for as long as that number remains in any way relevant to his payment. But he can't have a right to control the government's behavior, because such a right is impossible to implement in a regime of equal religious liberty. What if he won't pay if the statute is numbered 666, and I won't pay if it's numbered 667? Well, there are an infinite number of numbers, and only a finite population to object to them, so this is not the strongest example. But it is easy to imagine other examples with only two possibilities, mutually inconsistent. Pat Robertson believes God will punish the nation if it permits abortion. That doesn't mean he can control everyone else's abortion behavior for fear that he personally will be caught up in the punishment. And if there is one other citizen, with an intense religious commitment to women's control of their own bodies, who believes that God will punish the nation if it /restricts/ abortion, then what happens to the free exercise claims? We each get to exercise our own religion. And government should not regulate, penalize, or discriminate against that (or reward or discriminate in favor of that) without strong reason. But we do not each get to insist that government or our fellow citizens exercise our religion along with us, or even do much to help. Government's principle obligation, and often it's only obligation, is to stay out of the way. Quoting Volokh, Eugene [EMAIL PROTECTED]: Well, I suppose that's part of the question with any accommodation: When the government goes out of its way to accommodate people's religious objections -- by rearranging things to prevent coercive burdens on the people's religious beliefs -- is it therefore improperly endorsing the religion? Generally the answer seems to be no, see, e.g., Corporation of Presiding Bishop v. Amos, at least unless the action imposes a substantial burden on individual third parties (see, e.g., Estate of Thornton v. Caldor). What do others think? Would renumbering the section, or enacting a new section that mirrors the old, violate the Establishment Clause? (Would skipping the 13th floor, or offices numbered 666, in government-owned buildings?) Even if it wouldn't, would refusing to do so violate RFRA / Sherbert regimes? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Jean Dudley Sent: Thursday, July 31, 2008 3:24 PM To: Law Religion issues for Law Academics Subject: Re: Religious freedom and 42 USC 666 Another thought occurs to me; If the law were to be renumbered, that would constitute an endorsement of religion. The angle here is to present the law as simply sequential according to the rules of mathematics, in order to avoid an establishment of religion. Do they skip the number 13 in the federal statutes? ___ 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[1] 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/listinfo/religionlaw[2] 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. Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 Links: -- [1] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw [2] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw___ 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
RE: Religious freedom and 42 USC 666
Eugene, I think one can cut the cases the way you did; but one can also cut them the way I and Doug suggested. To satisfy the Roys' objection to providing the social security number, the government would have had to let them do something different (not provide the number). To satisfy Sherrod's objection, all the government has to do is renumber the statute; then it can require him to do exactly the same thing (pay the money). In that sense, Sherrod's objection is not to what he's being required to do, but to how the government has acted in its own operations (how it numbers a statute). I think that this characterization, bringing the case within Roy, is preferable because it explains the intuition that the government should win without resting on the problematic rationales that (a) the government must/can show a compelling interest/ least restrictive means in this instance -- i.e. it would be really hard to renumber this statute -- or (b) the claim is insincere or a mist! aken scriptural interpretation. Doesn't this eliminate the seeming puzzle in the case without creating any problems? My point overlaps with Doug's -- a regime allowing free exercise objections to what the government calls its laws is not manageable -- but it's narrower. I think that Nothwest Indian v. Lyng can be seen as the government doing something to the Native Americans, and not just as acting in its own sphere. Tom Berg University of St. Thomas School of Law (Minneapolis) From: [EMAIL PROTECTED] on behalf of Volokh, Eugene Sent: Thu 7/31/2008 5:57 PM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Well, I thought about Bowen v. Roy, but my sense is that the internal procedures point there was that the Roys weren't required to actually do anything that violated their religious beliefs (the government had stopped demanding that they provide Roy's social security number, and five Justices took the view that the government indeed had a constitutional obligation to so stop). The Roys just thought that the government's practice of giving Roy a number was spiritually harmful. Here, the claimant seems to be arguing not that it's bad for the government to have a section 666 in its statutes, but that it violates his religion to comply with orders issued under that section. Presumably, if the government copied or moved this to section 777, then he'd be OK with complying, not because the government changed its internal procedures, but because the action that he would be required to do would no longer be pursuant to a statute numbered with the number of the beast. So that seems different from Bowen v. Roy, no? Eugene Tom Berg writes: To the extent that he objects to paying the support even if the provision is renumbered, because the requirement is of the antichrist and the 666 simply evidences that, then I assume most courts would hold there's a burden but it's overcome by a compelling interest. To the extent he says his objection would be cured by renumbering the provision, then doesn't this seem like Bowen v. Roy -- and therefore not a cognizable burden -- in that the numbering of a statute is a matter of the government's internal procedures like the assignment of a social security number in Roy? If renumbering the provision would meet the objection, then the objection seems separable from the payment requirement itself and thus (arguably) concerns an internal government matter. It's not clear how much the Roy principle applies to RFRAs, but this might be the explanation for rejecting his claim that fits best into the previous law. ___ 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. ___ 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: Religious freedom and 42 USC 666
Tom, I tend to agree with you and Doug, but I think your description of Bowen v. Row is broader than the the way I would characterize it -- although the difference may be hair splitting. I think the idea behind Bowen v Roy isn't that a litigant can't challenge how the government has acted in its own operations, but that a litigant can't challenge how the government has acted in its own operations to avoid a kind of spiritual harm that has no real or secular world ramifications. I'm not certain that we can never challenge what the government calls its own laws. If the government used language in a law that stigmatized a particular religion -- an exemption or accommodation made available for members of false faiths (who use peyote in religious ceremonies or observe Saturday as the Sabbath) -- we might insist that the government change the language it uses to describe the accommodation because of the symbolic or status harm that it causes. But the alleged harm that results fr! om being indirectly associated with the mark of the beast is different. I think that the government is acting in its own sphere in Lyng, but it is also doing something to the Native Americans' ability to practice their faith that has a tangible, secular dimension to it -- and that distinguishes it from, and makes it a more difficult case than, Bowen v. Roy where the harm can only be understood in spiritual terms. Alan Brownstein UC Davis School of Law From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Berg, Thomas C. [EMAIL PROTECTED] Sent: Thursday, July 31, 2008 7:55 PM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Eugene, I think one can cut the cases the way you did; but one can also cut them the way I and Doug suggested. To satisfy the Roys' objection to providing the social security number, the government would have had to let them do something different (not provide the number). To satisfy Sherrod's objection, all the government has to do is renumber the statute; then it can require him to do exactly the same thing (pay the money). In that sense, Sherrod's objection is not to what he's being required to do, but to how the government has acted in its own operations (how it numbers a statute). I think that this characterization, bringing the case within Roy, is preferable because it explains the intuition that the government should win without resting on the problematic rationales that (a) the government must/can show a compelling interest/ least restrictive means in this instance -- i.e. it would be really hard to renumber this statute -- or (b) the claim is insincere or a mist! aken scriptural interpretation. Doesn't this eliminate the seeming puzzle in the case without creating any problems? My point overlaps with Doug's -- a regime allowing free exercise objections to what the government calls its laws is not manageable -- but it's narrower. I think that Nothwest Indian v. Lyng can be seen as the government doing something to the Native Americans, and not just as acting in its own sphere. Tom Berg University of St. Thomas School of Law (Minneapolis) From: [EMAIL PROTECTED] on behalf of Volokh, Eugene Sent: Thu 7/31/2008 5:57 PM To: Law Religion issues for Law Academics Subject: RE: Religious freedom and 42 USC 666 Well, I thought about Bowen v. Roy, but my sense is that the internal procedures point there was that the Roys weren't required to actually do anything that violated their religious beliefs (the government had stopped demanding that they provide Roy's social security number, and five Justices took the view that the government indeed had a constitutional obligation to so stop). The Roys just thought that the government's practice of giving Roy a number was spiritually harmful. Here, the claimant seems to be arguing not that it's bad for the government to have a section 666 in its statutes, but that it violates his religion to comply with orders issued under that section. Presumably, if the government copied or moved this to section 777, then he'd be OK with complying, not because the government changed its internal procedures, but because the action that he would be required to do would no longer be pursuant to a statute numbered with the number of the beast. So that seems different from Bowen v. Roy, no? Eugene Tom Berg writes: To the extent that he objects to paying the support even if the provision is renumbered, because the requirement is of the antichrist and the 666 simply evidences that, then I assume most courts would hold there's a burden but it's overcome by a compelling interest. To the extent he says his objection would be cured by renumbering the provision, then doesn't this seem like Bowen v. Roy -- and therefore not a cognizable burden -- in that the numbering of a statute is a matter
