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

[Howard Schweber]

Conversel, in Yoder Burger was quite clear that only a bona fide 
religion, not a"lifestyle," was entitled to Sherbert-style strict 
scrutiny of the absence of accommodation.  And of course, that was 
before Smith said that accommodation for religious purposes is never 
required.  Those seem to me to be the directly relevant cases:  the 
whole point is to ask whether a law puts a person in the position of 
choosing between compliance (or receipt of a benefit -- and remaining 
true to their beliefs.

The undue burden that Larry points to seems to me to be of a different 
kind:  not an infringement on ethical principles, a fear for the 
person's safety that created a burden on the exercise of her right of 
choice.  That is a different kind of situation, I think.

Howard Schweber
UW-Madison



Rosenthal, Lawrence wrote:
> 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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