Doug may well be right that for most lower courts (but not all -- see
Michael Masinter's post), whether the term burden is modified by
substantial will not matter, because such courts inevitably end up
balancing the degree (or nature) of the burden on religious exercise --
indeed, the degree of
I stand by what Marty quotes, which is why I think the facts of cases, and
the judge's attitude towards the statute and religious liberty, generally
make far more difference than the presence or absence of the word
substantial. No doubt there are some cases where, given the facts and the
judge's
The reason not to construe RFRA to apply to all secular philosophical
objectors is that it's just plain crazy as a matter of policy. RFRA (which
we would have to rename FRA after such a construction) applies to all of
federal law. So this construction would give the holder of every crackpot
Michael cites Warner v. Boca Raton, 887 So.2d 1023 (Fla. 2004), as an
example of a case where the word substantially was critical to the result.
And that is what the court says. But it is quite obviously not true.
The Florida court read substantially to mean that only those practices
that
I find it interesting that Doug concedes in this thread that results in RFRA
cases turn on the judge's predilections on religious liberty regardless of the
law's language. I have witnessed this lack of neutrality in several cases,
most notably the ruling by Judge Randa in the Milwaukee
Why is it so crazy? If, for instance, religious objectors to
abortion get exemptions from having to participate in abortion, conscientious
secular philosophical objectors would get such exemptions, too. That seems
fair, and is indeed the rule both under various
I'm happy to let others answer the question of why Eugene's FRA would be
crazy (and profoundly contrary to the statute Congress enacted in 1993).
If Eugene is not persuaded, so be it.
On Tue, Dec 3, 2013 at 10:57 AM, Volokh, Eugene vol...@law.ucla.edu wrote:
Why is it so
Chip has cut to the chase (thank you)
i would add that Eugene's reasoning further underscores how RFRA is in fact a
non-ratified amendment to the First Amendment, as the Court pointed out in a
footnote in Boerne. Advocates for it like Eugene cannot build in all the
rules they like by
So I take it the EEOC and the great majority of courts that
have considered the meaning of “religion” in Title VII are wrong, too? Here
are the citations I had when I last researched the matter in 1999: Protos v.
Volkswagen of Am., Inc., 797 F.2d 129, 137 n.4 (3d Cir. 1986)
Religion is in the title. The only testimony supporting it or RLUIPA was by
religious folks. Congress had no basis to enact and NEVER would
have enacted a law subjecting every law in the country to strict scrutiny
triggered by every imaginable belief. That statute is actually irrational.
Hopefully this is not ad hominem! I don't see anything unique about this in
RFRA. It is a standard concern with any legal test that involves the use of
standards, balancing, and other questions of judicial application in the case.
It is true of vast swaths of constitutional law and common law.
Eugene writes: Even in the face of this caselaw, and the argument that
such preference for religion makes the statute unconstitutional, the Court
can’t read RFRA the same way [as courts have read the title VII and
conscientious objector statutes], but is instead compelled to read it in a
way that
I agree with these points. I would also add that there are many ambiguities and
uncertainties in a test like that announced in Employment Division v. Smith,
both because of the express carve-outs within Smith itself (whatever their
motivation) and because of implicit questions about legislative
Two additional thoughts:
1. While the Court certainly could take the approach Eugene suggests, does
anyone think the Court will do so? In light of the fact that the Court
recently and unanimously embraced the position in Hosanna-Tabor that
religion gets special treatment under the Constitution,
Marty's post focuses the discussion particularly well here. However, if we
construe RFRA to provide that avoiding significant third-party harms is a
compelling state interest, we are still left with the least restrictive means
part of rigorous review. How does the least restrictive means
Like Doug, I think the Florida supreme court misconstrued FRFRA (more
full disclosure -- I chaired the ACLUFL legal panel that authorized
Jim Green and Doug to represent Warner on behalf of the ACLUFL). But
it remains the case that the court devoted several critical paragraphs
of its
I sympathize with the argument that there is a compelling
government interest in preventing costs on third parties, and that this may
justify rejecting the RFRA claim. I think the doctrine here is especially
uncertain, but there's much to be said for that argument as a reason
Which HHS accommodation? The first -- exempting churches altogether -- in
theory does not impose as much of a burden on their employees, because
those entities already have a right (under title VII) to prefer
coreligionists and insist that they comply with religious obligations --
that is to say,
I read the Gedicks Van Tassell article, which I found
interesting but ultimately not quite persuasive as to the draft.
According to
http://www.swarthmore.edu/library/peace/conscientiousobjection/co%20website/pages/HistoryNew.htm,
there were 170,000
Sorry, I should have limited this to churches, many of whom do
not actually prefer coreligionists, even if Title VII lets them do so. (I
erred in saying that Gedicks Van Tassell would hold this unconstitutional.)
Eugene
From: religionlaw-boun...@lists.ucla.edu
My apologies for the delay responding to Alan’s point. Alan
raises an excellent argument, but my tentative thinking is that the force of
the assault/theft hypotheticals stems precisely from the fact that they involve
injury to long-recognized common-law private rights. I’m not
Alan,
Thanks for this response, and sorry for not replying sooner. I have been
thinking about it since yesterday. If I understand correctly (and I'm not sure
about this), you're saying that the government would violate RFRA if it did not
act to avoid an as-applied Establishment Clause
I don't think that substantial burden merely means sincerity. As I said, I
think that burden and compelling interest inevitably become a balancing test,
so that the degree of substantiality matters whether the statute says so or
not.
I did mean to say that the Florida court's interpretation
This is an excellent hypothetical. My own inclination is that the only
justification for a clergy-penitent privilege is a) if there is a duty to
confess to a member of the clergy; and b) if the clergy in question believes
that God will punish disclosure of the confession. (It shouldn't be
Eugene's hypothetical presumably describes some of the cases, from the least
sophisticated or most desperate penitents. But it probably doesn't describe
very many; most penitents rely on the privilege, and few would confess to their
priest if priests were routinely testifying against folks who
I strongly suspect that Doug is right. Still, I do wonder how often cases do
arise beyond the Catholic Church (which probably fulfills my conditions for the
privilege).
sandy
-Original Message-
From: Douglas Laycock [mailto:dlayc...@virginia.edu]
Sent: Tuesday, December 03, 2013
And the clergy-penitent privilege is one of many such privileges --
doctor-patient, lawyer-client, spousal privilege, etc. They are designed
to encourage communication within relationships the law values. So this
example is like Walz -- it does not involve special treatment for religion.
It is
Well, people do talk incautiously in contexts where no privilege is
available, and their statements are used as a result. Some people might not
talk if they knew a privilege was unavailable, but others still might,
especially if they feel they need to unburden themselves, and even more
I don't think that's right. First, recall that the employer
mandate exemption is supposed to be one of at least a few such exemptions
(grandfathered plans and under-50-person plans being the other ones); fewer
than the privileges, but not by that much.
Second,
I once wrote an article, Testimonial Privileges and the Preferences of
Friendship, 1984 DUKE LAW JOURNAL 631-662 (1984), the general thesis of which
is that there is no truly plausible general theory of such privileges. (The
title, incidentally, comes from Rousseau, who wrote that the
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