the weird hypo rides again

[Michael McConnell]

Michael Paulsen asks me some questions:

> 1.  Take a church that does not have a parish system, and that could
> move a few blocks to a new location without damage to its central city
> location/statement/mission and without inconvenience to its
> parishoners.  Assume the sole burden is the financial cost to the
> church of not being able to accommodate its worship needs at the
> lowest possible cost, and that it feels the money could be more
> appropriately spent than on bricks and mortar.  Is this a cognizable
> "substantial burden"?

Probably not. The ordinary rough and tumble of economic regulation,
where churches are no more injured than anyone else, should not count
as a free ex violation.

  What if there were not even any substantial
> economic cost, but the church believed as a matter of religious
> principle that the Church should never have to move (or change its
> construction plans) as a consequence of the demands of Caesar.  Is
> this a cognizable "substantial burden"?

This is a tougher question. I guess my answer would be that if the
church has no religious objection to moving, but only to government
having a role, I would not consider this a burden on free ex.  I put
this in the class of "weird hypos"--if there were a real case, with
real facts and a real religious tradition to talk about, it is
possible I might see some merit in the claim.

>
> 2.  If the answer is yes, how do you distinguish the homeowner?

If the answer were "yes," I would distinguish the homeowner on the
ground that the government has more authority to regulate the lives
of its citizens than of churches. The autonomy of mediating
institutions is important-- and the liberty of conscience tradition
is supplemented by the separationist tradition.
 >
> 3.  If Eugene's hypo is too weird, how about Rick Duncan's?

Rick's case is easy, and not weird at all. To shut down Rick's Bible
study but not a bridge game or book group of similar size is plainly
content-based discrimination, and an open-and-shut free speech
violation. No need to think about RFRA.
 -- Michael McConnell (U of Utah)