Does the Establishment Clause bar even religion-neutral accommodations?

Volokh, Eugene VOLOKH at law.ucla.edu
Wed Dec 3 18:34:43 PST 2008


	I had thought Cutter spoke only to exemptions that facially
prefer religious objectors, and that religion-neutral accommodations
categorically don't violate the Establishment Clause, even if most of
the accommodated people are religious.

	If I'm wrong, though, then I don't see how the draft
conscientious exemption can be sustained.  For every conscientious
objector who isn't sent to the front, there is one person who is sent in
his place -- to potentially kill or be killed -- and who wouldn't be
there if the conscientious objector is.  That's a pretty serious burden
on nonobjectors, it seems to me.  It's constitutional, but it's
constitutional not because it's only a slight burden, but because
religion-neutral accommodations for conscientious objectors are
constitutional even when they impose serious burdens on others.  The
government is entitled to decide how these burdens are adjusted, even if
most of the beneficiaries of some particular decision are religious.

	Eugene

Larry Rosenthal writes:
 
> Cutter v. Wilkinson makes clear that many efforts to 
> accommodate religious objectors to governmentally-imposed 
> burden on religious belief are constitutional.  Still, the 
> opinion is not a blank check -- it is careful to note that at 
> some point the burden imposed by the accommodation may become 
> sufficiently onerous that the accommodation can no longer be 
> considered reasonable.  The question here is whether this 
> accommodation that exempts medical providers from the duty to 
> provide counseling consistent with the prevailing standard of 
> care as well as the ficuciary duty the law otherwise imposes 
> on medical providers creates a sufficiently onerous burden on 
> some women -- I have in mind rape victims in particular -- 
> that the accommodation would not be considered reasonable 
> under Cutter.  
>  
> While the accommodation the draft laws have made for 
> conscientious objectors is likely to be thought reasonable, I 
> do not think that the incremental burden imposed when some 
> small fraction of the public is given conscientious objector 
> status, increasing only to some small extent the likelihood 
> that others will be drafted, is comparable to the burden 
> imposed on a rape victim who is denied counseling consistent 
> with the applicable standard of care.  Exempting objectors 
> from performing abortions probably imposes no undue burden as 
> long as the rape victim can readily find another nonobjecting 
> professional, but denying the rape victim the information 
> that she may need in order to find an alternate provider 
> quickly enough to obtain the speediest and safest method of 
> abortion available could well imposes a burden of a different order.
>  
> Larry Rosenthal
> Chapman University School of Law
> 
> ________________________________
> 
> From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> Sent: Wed 12/3/2008 2:42 PM
> To: conlawprof at lists.ucla.edu
> Subject: RE: abortion referral regs
> 
> 
> 
> 
>         Seems to me that lots of religion-neutral 
> accommodations are predominantly used by religious groups, 
> and were predominantly intended to accommodate religious 
> groups.  Conscientious objection to the draft
> -- which imposes huge burdens on those who end up having to 
> take the objector's place in combat -- are an obvious 
> example.  There are also laws that provide that medical 
> professionals don't have to participate in actually 
> performing abortions; and I'm sure we can think of very many 
> other examples.  Are those also Establishment Clause 
> violations, even though they equally benefit all 
> conscientious objectors, whether religious or otherwise?
> 
>         Eugene
> 
> > -----Original Message-----
> > From: conlawprof-bounces at lists.ucla.edu 
> > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Rosenthal, 
> > Lawrence
> > Sent: Wednesday, December 03, 2008 2:31 PM
> > To: David Wagner; Bezanson, Randall P; conlawprof at lists.ucla.edu
> > Subject: RE: abortion referral regs
> >
> > True, some medical providers object to abortion counseling on 
> > nonreligious grounds, but I suspect that a Court would 
> conclude that 
> > the predominant purpose in the challenged regulations is to 
> > accommodate religious objections -- a position that has the 
> virtue of 
> > most likely being correct -- and for that reason they could 
> run afoul 
> > of the Establishment Clause as exceeding the scope of a permissible 
> > accommodation of religious belief.
> >
> > Larry Rosenthal
> > Chapman University School of Law
> >
> > -----Original Message-----
> > From: David Wagner [mailto:daviwag at regent.edu]
> > Sent: Wednesday, December 03, 2008 2:10 PM
> > To: Rosenthal, Lawrence; Bezanson, Randall P; 
> > conlawprof at lists.ucla.edu
> > Subject: RE: abortion referral regs
> >
> > Current positive con law labels abortion a right; a long way from 
> > homicide. It stops well short, however, of labeling the 
> > abortion-is-homicide view a religion, accommodation of which would 
> > raise Lemon issues. On the contrary, abortion decisions since Casey 
> > have gone out of their way to acknowledge that "arguments of great 
> > weight" (pardon the quote from memory -- it's something like that) 
> > counsel against abortion, and that some BUT NOT ALL of 
> these arguments 
> > are religious.
> >
> > Whatever those (admittedly rather patronizing) concessions 
> mean, they 
> > at least suggest that were the issue to come before it, the Court 
> > would not consider the burden on a doctor forced to connive at an 
> > abortion to be no greater than the burden on, say, a 
> Catholic waiter 
> > in the '50s forces to serve meat on Friday.
> >
> > But if we agree that a mandate to participate in homicide 
> for the sake 
> > of enabling the constitutional right of another would be 
> inadmissible, 
> > we've achieved something.
> >
> > David Wagner
> >
> > > -----Original Message-----
> > > From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof- 
> > > bounces at lists.ucla.edu] On Behalf Of Rosenthal, Lawrence
> > > Sent: Wednesday, December 03, 2008 4:37 PM
> > > To: Bezanson, Randall P; conlawprof at lists.ucla.edu
> > > Subject: RE: abortion referral regs
> > >
> > > If one agrees with Professor Wagner's equation between 
> homicide and 
> > > abortion, his conclusion follows.  As I recall, however, the 
> > > Constitution is presently understood to take a different
> > view of the
> > > matter.  That is why an effort to accommodate those who share
> > Professor
> > > Wagner's view may lack the requisite secular purpose and effect.
> > >
> > > Larry Rosenthal
> > > Chapman University School of Law
> > >
> > > -----Original Message-----
> > > From: David Wagner [mailto:daviwag at regent.edu]
> > > Sent: Wednesday, December 03, 2008 12:04 PM
> > > To: Rosenthal, Lawrence; Bezanson, Randall P;
> > conlawprof at lists.ucla.edu
> > > Subject: RE: abortion referral regs
> > >
> > > A problem here seems to be that complicity in homicide
> > keeps getting
> > > flattened down to "burden on religious belief."  Burden on
> > religious
> > > belief is not all that's going on.  We're all flying blind
> > here, not
> > > have seen the regs, but Prof. Bezanson's post had them protecting 
> > > "religious or conscientious objection" to abortion.  
> Let's consider
> > two
> > > classes of beneficiaries of this reg:
> > >
> > > 1. Pro-life doctors whose views on abortion are entirely based on
> > > religion: OK, but what does their religion tell them? In 
> most cases:
> > > not
> > > just that abortion is like working on the Sabbath, or like
> > eating meat
> > > on Friday pre-Vatican II, but that it's the taking of a
> > human life by
> > > another human being; homicide, the crim law hornbooks 
> call it. In a 
> > > system with a Free Exercise Clause (Smith or no Smith), 
> it seems odd
> > to
> > > treat a conviction about the homicidal nature of a
> > concededly (by most
> > > people, surely?) life-taking act LESS respectfully because of its 
> > > religious basis. (I acknowledge that the Court has been all
> > over the
> > > place on whether relief from an otherwise-applicable burden on
> > religion
> > > is itself a secular purpose under Lemon, just as it has
> > been wobbly on
> > > the continuing meaning of Lemon.)
> > >
> > > 2. Pro-life doctors whose views on abortion are not based
> > on religion:
> > > some of these may be religious anyway; others may be
> > atheists. (I've
> > > met a number of pro-life atheists, actually.) Are their 
> consciences 
> > > completely conscriptable because, in their case, there is by
> > definition
> > > no "burden on religion" at all?
> > >
> > > The regs appear to include "conscientious objection" -- 
> which would 
> > > plug us into the whole corpus on that issue as applied to 
> military 
> > > exemptions, e.g. Seeger.  The results of course are mixed:
> > traditional
> > > personal theism is not required, but mere "philosophy"
> > doesn't cut it.
> > > But when you pull back from the cases and look at military policy
> > while
> > > the draft was in effect, they did a pretty good job of
> > balancing the
> > > competing interests: ways were found for objectors to be of
> > use, while
> > > keeping them away from jobs that would force them to commit
> > (what they
> > > thought of as) objective and absolute evils. It's hard to
> > imagine that
> > > such accommodations are impossible to find for pro-life medical 
> > > personnel.
> > >
> > > The "prevailing standard of care," as described by Prof. 
> Rosenthal, 
> > > requires medical personnel in either of the above two 
> groups to be 
> > > complicit (according to familiar principles of accomplice
> > liability,
> > > which, if reasonable in the legal sphere, can scarcely be deemed 
> > > irrational in the moral one) in homicide. That is not a
> > light burden.
> > >
> > > All right then, what about the burden on the rape victim?
> > This may be
> > > heavy too, but it can be lightened by, e.g., establishing 
> protocols 
> > > directing emergency response personnel to
> > non-religiously-affiliated
> > > hospitals, or giving them in advance (those that have no
> > conscientious
> > > objections, presumably) the very information sought to be demanded
> > from
> > > objecting, pro-life doctors. I don't claim to be ecstatic
> > about these
> > > solutions, but I think they bear some analogy to the military 
> > > conscientious objection solutions, so they come with some 
> honorable
> > bag
> > > and baggage. At least, solutions are possible that do not involve 
> > > forcing pro-life doctors to participate in abortion (at
> > one, morally
> > > irrelevant remove). I suspect some people find it creepy that the 
> > > pro-choice principle stops dead when the choice is that 
> of a doctor
> > not
> > > to participate in an abortion.
> > >
> > > David Wagner
> > >
> > >
> > > > -----Original Message-----
> > > > From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
> > > > Sent: Wednesday, December 03, 2008 2:16 PM
> > > > To: David Wagner; Bezanson, Randall P; conlawprof at lists.ucla.edu
> > > > Subject: RE: abortion referral regs
> > > >
> > > > I take Professor Wagner's point.  Still, I think there is
> > a tenable
> > > > Establishment Clause problem here.
> > > >
> > > > Cutter v. Wilkinson explains that the government is 
> generally free
> > to
> > > > remove governmentally-created burdens on religious belief by
> > granting
> > > > exemptions from generally applicable laws, as long as no undue
> > burden
> > > > is
> > > > created in the process.  Here, however, the burden that the
> > > regulations
> > > > might impose on others could be extraordinary.  As I
> > understand the
> > > > proposed regulations (from press accounts; I have not 
> read them),
> > > they
> > > > could result in a rape victim, taken by emergency
> > response personnel
> > > to
> > > > the emergency room of a religiously affiliated hospital
> > that objects
> > > to
> > > > abortion counseling on religious grounds, not being
> > advised of the
> > > > availability of the "morning after" pill until it is 
> too late to 
> > > > utilize that procedure.  At the same time, the burden on
> > religious
> > > > belief
> > > that
> > > > is imposed by a requirement that the patient receive all
> > counseling
> > > > ordinarily required by the prevailing standard of care is rather
> > > modest
> > > > -- after all, persons who choose to become medical providers 
> > > > necessarily subject themselves to fiduciary obligations 
> to their 
> > > > patients that trump their personal beliefs.  Thus, this
> > may be the
> > > > kind of case
> > > envisioned
> > > > by Cutter in which the governmentally imposed burden on 
> religious 
> > > > belief is relatively modest, while the burden imposed on third 
> > > > parties by a religious exemption may be so great that the 
> > > > regulations would not
> > be
> > > > considered a reasonable accommodation of religious belief, but
> > > instead
> > > > would be thought to lack a proper secular purpose and effect.
> > > >
> > > > Larry Rosenthal
> > > > Chapman University School of Law
> > > >
> > > >
> > > > -----Original Message-----
> > > > From: conlawprof-bounces at lists.ucla.edu 
> > > > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> > David Wagner
> > > > Sent: Wednesday, December 03, 2008 10:33 AM
> > > > To: Bezanson, Randall P; conlawprof at lists.ucla.edu
> > > > Subject: RE: abortion referral regs
> > > >
> > > > How can there be a 1st Am problem with a reg that permits, but
> > > prevents
> > > > the requiring of, speech of a certain viewpoint, 
> without requiring
> > or
> > > > subsidizing either viewpoint?  Would the opposite outcome --
> > > requiring
> > > > speech referring for abortions -- pose 1st Am problems 
> of its own?
> > --
> > > > Wooley v. Maynard, with the difference that New 
> Hampshire did not 
> > > > actually require anyone to die rather than live free, 
> whereas, in
> > > this
> > > > hypo, pro-life doctors would be required to be complicit in
> > homicide?
> > > >
> > > > David M. Wagner
> > > > Regent University School of Law
> > > >
> > > >
> > > > > -----Original Message-----
> > > > > From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof- 
> > > > > bounces at lists.ucla.edu] On Behalf Of Bezanson, Randall P
> > > > > Sent: Wednesday, December 03, 2008 12:10 PM
> > > > > To: conlawprof at lists.ucla.edu
> > > > > Subject: abortion referral regs
> > > > >
> > > > > I have read about the midnight regulation(s) of the Bush
> > > > administration
> > > > > that, in part, exempt health care providers who refuse to
> > > participate
> > > > > in abortion for reasons of religion or conscientious objection
> > > (this
> > > > is
> > > > > not new) to also refuse to advise patients of 
> alternative health
> > > care
> > > > > providers, facilities, etc. at which an abortion can be
> > obtained.
> > > If
> > > > I
> > > > > am right in describing the proposed regulation in the abortion
> > > > setting,
> > > > > this seems to present first amendment problems.  
> Unlike Rust v.
> > > > > Sullivan, where the providers were scripted by 
> government (thus 
> > > > > government speech), here they are free to express their own
> > > > preferences
> > > > > about medical advice by way of what is in effect an
> > exemption from
> > > > > otherwise applicable legal duties.  It seems therefore to be a
> > > legal
> > > > > exemption for speech expressing a favored point of view.
> > > > >
> > > > > Two caveats:  first, I have not seen the proposed 
> regulation(s),
> > > and
> > > > > would appreciate being better informed -- or corrected -- by
> > anyone
> > > > > familiar with them; second, I realize that the scope of the
> > > proposed
> > > > > regulation(s) is broader, both in those so exempted (i.e.
> > > pharmacist,
> > > > > too, I believe) and the subjects affected/exempted. 
> > But it still
> > > > > strikes me that such a selective point of view-based
> > exemption is
> > > > > problematic, and that the issue is not solved simply by saying
> > that
> > > > its
> > > > > effect is to allow the health care providers to express
> > their own
> > > > > convictions (to the detriment of the patients).
> > > > >
> > > > > I would be interested in further thoughts on this.
> > > > >
> > > > > Randy Bezanson
> > > > > Univ. of Iowa
> > > > > _______________________________________________
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