Sorry. My mistake. My post was focusing on statutory accommodations because
RFRA has been the focus of most of the recent discussion on the list. Eugene is
quite right that the case for an analogy to family relationships is stronger
for statutory accommodations.
But there is some basis for anal
I'm not sure that Marty's two-step approach works. To be sure,
a legislature can always require everyone to pay taxes. But if the legislature
requires people who do X to pay a tax, while people who don't do X don't pay
the tax, and X turns out to be something that people feel a
To make Braunfeld analogy closer, wouldn't you'd need a law
that said, "if you aren't open 24/7, you have to pay an $X tax" -- or, in the
Sherbert context, "if you quit work without good cause, you have to pay a tax
equal to X% of your unemployment compensation"? I would think t
I appreciate Alan's point, but I wonder how far it goes.
First, I might not have been clear enough on this in my post,
but I was speaking of what should be a matter of constitutional entitlement, or
entitlement under a generally applicable exemption scheme. And w
David's correct that there may be a discrepancy here --- and the greater the
discrepancy the greater the cost to government and the public of providing the
accommodation.
I think the discrepancy is likely to be smaller rather than larger in cases
involving government mandates requiring third pa
Eugene writes,
"Now it seems to me -- though of course others disagree -- that the normative
case for a right to impose costs on others through conduct simply because you
think God requires that conduct is not an appealing case. Your God is your
God, not mine; why should I lose s
You have a fair point; I'm uncomfortable with *Reynolds*, but that doesn't
mean there weren't less protections for religion pre-incorporation.
However, the distinguishing of *Yoder *and *Sherbert* (not to mention
*Cantwell*) in *Smith* is just a legal fiction Scalia made up. The Law
Review artic
This reasoning is based on the mythology created around the free exercise
clause by the reactions to Smith and the misrepresentations about the doctrine
to Congress. It is quite remarkable this many years later so many continue to
parrot what is in fact untrue. Yoder was an outlier and Sherber
I would think that, if Hobby Lobby wins the case, this will
just mean that future Congresses who are worried about such things should add a
"RFRA will not apply to this statute" provision to statutes when they don't
want any religious exemptions from those statutes. That's one a
This is very helpful. For Rick's argument, I still think the central question
is why we would accommodate, even if the costs are relatively low, someone with
religious objections, say, to working on an assembly line producing munitions,
but not a secularist with a very tender conscience. (As a
Rick Garnett's and (less directly) Michael Worley's posts
highlight, I think, the fact that there are two kinds of religious exemption
arguments that are often heard.
The first is Rick's argument, at least in this instance, which
focuses on what might see as low-
Alan,
Did you mean the two quoted passages below to be equivalent? They seem
somewhat different (at least potentially) to me. That is, the cost of having
the government rather than employers provide a benefit might outstrip the
amount an employer gains by not providing the benefit, might it n
Rick asks an important question. We can step back from the constraints of the
current litigation and think about how this issue should be resolved on a clean
slate, (This analysis also requires ignoring the polarized and dysfunctional
governments that exist at the national level and in many stat
Dear friends,
I'm also grateful to Eugene, Marty, Nelson, Micah, Fred, and many, many others
who have been blogging and writing - carefully and insightfully - about the HHS
cases. I wanted to raise a not particularly technical or doctrinal question
that has been on my own mind as I think about
I apologize for not responding right away, but I'm slammed with other
stuff. There is a lot to say here, and I think it's important -- Eugene is
raising some good questions. I'll try to respond in the next day or so; in
the meantime, I'm very grateful for all the reactions, both supportive and
cr
I came across this article and thought it may be of interest to some
members of the list.
Best wishes to all for a pleasant holiday season,
Dave
--
Dawinder "Dave" S. Sidhu
Supreme Court Fellow, U.S. Sentencing Commission
Assistant Professor of Law, University of New Mexico School of Law
si...@la
Even if some employers have to pay more under the 4980H(a) tax, would that be
sufficient to show a substantial burden? In Braunfeld v. Brown, the Court held
that laws may indirectly burden religious believers even when they impose "some
financial sacrifice in order to observe their religious bel
Even Free Speech violations about time, place and manner get intermediate
(heightened) scrutiny. My reading of Smith suggest Free Exercise claims do
not.
On Wed, Dec 18, 2013 at 8:08 AM, Paul Horwitz wrote:
> I don't think it becomes the equivalent of the Ninth Amendment, or a
> shell, without
I don't think it becomes the equivalent of the Ninth Amendment, or a shell,
without heightened scrutiny as a freestanding principle. And I say that as a
fan of the pre-Smith regime. Rather, it becomes an equality/speech provision,
like the rest of the modern First Amendment. I am by no means a f
And yet, without some form of heightened scrutiny, the free exercise clause
becomes a shell-- a hollow clause. I'm not saying RFRA gets the balancing
right (I could make that argument, but I'm not), I'm saying that we have to
let judges do this balancing in some way. Otherwise the Free Exercise
C
This exchange, which shows both Marty and Eugene's high qualifications for
public service, underscores how RFRA (and RLUIPA) turn federal courts into
super legislatures and violate the separation of powers -- as Boerne ruled. No
court in my view is institutionally competent to make these assess
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