Im sorry to be late in returning to this thread. I appreciate Professor
Masinters example, his posts and the others.
It seems like Marty and Doug have helpfully given us a couple of ways of
going forward.
(1) Centrality could be a threshold requirement.
(2) Centrality could be
Chris: The question is not how central the religious exercise is to the
plaintiff's system of religion -- an assessment that I would never
encourage civic officials to assess and that the text of the statute in any
event precludes -- but how *important *it is to the plaintiff, which can be
viewed
The religious employers in the contraception mandate cases are arguing that
they are substantially burdened by being required to pay for insurance coverage
that conflicts with their religious beliefs. The basic structure of this claim
is: the government is forcing A to pay B for something that
Many reasons can be offered for the venerable privilege that originated as the
priest-penitent privilege, including as Doug notes that the penitent having the
confidence that confession is sacrosanct will be willing to share that which he
or she withholds from all others and thereby be in a
Much of free speech law involves protecting speech that burdens third parties;
for example, the victims of hate speech suffer emotional distress as do the
mourners at funerals tormented by the Westboro Church, and speech that does not
quite violate Brandenburg can incite violence. Further, the
Greg’s argument is obviously quite eloquent. But I think it is telling that it
is really predicated on Catholic theology, including the “sacramental” nature
of confession and the joint duty of the penitent/sinner to confess and of the
priest to keep the confession confidential. And, of
Free speech doctrine, for better or worse, presumably protects (almost)
everyone. What is distinctive about the clergy-penitent privilege is that it
protects only a particular subset of people, i.e., those who claim some
religious identity, as against secularists who have the same desire to
I agree with Alan, Marc, and Chris at some level of generality. But it seems
to me that religious exemption claims are rightly treated differently than
other claims, such as free speech claims.
Consider, for instance, the emotional distress tort. Larry Flynt says nasty
things about Jerry
I agree that, in Abood, the Court held that the compelled subsidy burdened
First Amendment interests. I didn't mean to suggest otherwise (and indeed I've
made the same point in an article discussing Abood), although re-reading my
post below, I can see that I was not clear about this. My
Well, the most recent case, Knox, does label Abood as applying
strict scrutiny. But even if Abood applied lower scrutiny (which I agree is a
possible interpretation), then wouldn't that cut in favor of Hobby Lobby?
After all, that a requirement passed lower scrutiny under the
Putting aside Eugene's first example involving religiously motivated speech
because religious exercise overlaps speech and it can get very complicated
figuring out how overlapping rights frameworks fit together, I agree with
Eugene in some respects. I do not equate religious liberty and freedom
My point is that if you read Abood as applying a lower standard of review, then
why apply a higher one for compelled subsidies in Hobby Lobby? What justifies
the asymmetry, especially given that Abood identifies the non-union member's
interest as one of freedom of conscience? And if you read
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