Substantial burdens and regulations that seem especially burdensometo people with certain ethical beliefs

[Rosenthal, Lawrence]

One example that comes to mind is the spousal notification requirement invalidated in Planned Parenthood v. Casey.  The plurality agreed that for the vast majority of women, a requirement of spousal notice would impose no burden since most, but because some women may face significant emotional or other difficulties in providing notice to their husbands, the requirement imposed an "undue burden" on the right to abortion.
 
As it happens, I have just written an article, due to appear any day now, arguing that the Second Amendment right described in Heller ought to be evaluated under the type of "undue burden" approach taken in the abortion cases: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1245402
 
Larry Rosenthal
Chapman University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Wed 3/18/2009 3:32 PM
To: conlawprof at lists.ucla.edu
Subject: Substantial burdens and regulations that seem especially burdensometo people with certain ethical beliefs




        I'm writing an article on stun guns and the right to bear arms
(as well as the state constitutional right to defend life).  One matter
that I'm exploring is the situation of people who are ethically or
emotionally unprepared to use firearms; a stun gun ban is therefore
especially burdensome to them.  For most of us, the availability of
firearms gives us adequate tools for self-defense (at least at home),
but for people who don't want to use firearms, the stun gun ban may
leave them without really effective defensive tools (if I'm right that
pepper spray is a less effective alternative in many contexts).

        My constitutional question:  What other cases have found a
substantial burden based partly on people's somewhat unusual but
plausible ethical or emotional preferences?  (I have a separate chapter
on people's felt religious obligations and religious exemption
doctrines, so that's not what I'm looking for here.) 

        The one case that comes to mind is Watchtower Bible & Tract
Soc'y v. Village of Stratton, 536 U.S. 1540, 167 (2002), where the
majority mentions -- among other burdens -- that "There are no doubt
other patriotic citizens, who have such firm convictions about their
constitutional right to engage in uninhibited debate in the context of
door-to-door advocacy, that they would prefer silence to speech licensed
by a petty official."  (I should note that Scalia, joined by Thomas,
mocked this rationale:  "As for the Court's fairytale category of
"patriotic citizens," who would rather be silenced than licensed in a
manner that the Constitution (but for their "patriotic" objection) would
permit: If our free-speech jurisprudence is to be determined by the
predicted behavior of such crackpots, we are in a sorry state indeed.")

        Are there other such cases?  Thanks,

        Eugene
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