Christian Science Case

[tom berg]

I agree with Mike Paulsen:  RFRA mandates that the remedy
for an underinclusive accommodation (as the Christian
Science health care accommodations may be) is to broaden
the accommodation.  The whole purpose of RFRA is to
require accommodations throughout federal and state law
in situations to which no specific accommodation extends.
Therefore Chip's question about remedy only becomes
relevant if and when RFRA doesn't apply because it is
exceeds section 5 or violates separation of powers.

But even if RFRA is out of the picture, the proper remedy
in both Children's Healthcare and Kiryas Joel was still to
expand the accommodation.  The analogous situation is
raised by Justice Harlan's concurrence in Welsh v. U.S.,
where he argued (wrongly, but that's beside the point for
now) that draft exemptions could not constitutionally be
limited to religious claims -- and then asked whether to
strike the down the existing statute (which he read as
covering only religious claims) or order an extension of
exemptions to a broader class of conscientious claimants.
He said the question was something like severability --
would Congress likely prefer to exempt all conscientious
claims or have no exemptions at all -- and he concluded
that the policy of having some exemptions was strong and
longstanding enough that it should not be scratched; thus
the proper course was to order that the exemption should
extend more broadly.  He said this even though the
extension to non-religious conscientious claims
potentially increased the number of claimants
dramatically.

Under this analysis, Kiryas Joel and Children's
Healthcare are easy cases for remedying the
sect-specific accommodation by expanding it to
similarly situated sects.  (I assume that it does not
have to extended to non-religious conscience, for that is
a different issue.)  We know there are some
religious claimants (the Satmar Hasidim, Christian
Scientists) currently burdened by the general law.  There
don't appear to be very many other sects out there (if
any) who have a similar problem. There is no good reason
to think that expanding the accommodation in a
religiously neutral way would significantly alter the
legislative policy; it would not open the floodgates.
(I.e. Chip is wrong to characterize the extension of the
remedy as a radical step.) There is no good reason,
therefore, to resolve the problem of sect discrimination
by denying accommodation to the sect that we know is
burdened.  This is so whether you engage in any
fiction-mongering about what the legislature would have
intended, or whether you just compare the benefits of
accommodation against the costs.


-- Tom Berg


On Fri, 31 Jan 1997 07:04:11 CST
"stoke001 at maroon.tc.umn.edu" <stoke001 at MAROON.TC.UMN.EDU>
wrote:


> I have not seen any discussion on this list about the *Children's
> Healthcare is a Legal Duty, Inc.* case out here.  A US District Judge
> struck down the statutory accommodation to Christian Science sanitoria
> and nursing care within the Medicare and Medicaid programs, designed
> to permit Christian Scientists to receive reimbursement from these
> programs for nursing-type physical care services in contexts that do
> not pose a conflict with the requirements of their faith (very
> strongly disfavoring medical treatment).  The problem identified by
> the judge was that the statutory accommodations singled-out Christian
> Science by name, a *Kiryas Joel* difficulty.  The suit was brought
> against the United States, and the Christian Science Church intervened
> as a defendant.
>
> The latest wrinkle is that the United States has switched sides in the
> case.  The Church defendant is appealing the invalidation of their
> accommodation, and the United States is joining the (non-Hofheldian)
> plaintiffs in challenging the constitutionality of the federal
> statute.
>
> The Church's argument, on motion to alter or amend judgment in the
> district court, was that the remedy for a sect-specific (or otherwise
> underinclusive) statutory accommodation is to broaden it to all
> similarly situated religious claimants, not to invalidate it
> entirely, and that RFRA requires such an outcome in this case.
>
> The Church's position is, of course, obviously correct.  (Yes, I'm
> baiting you Chip, Abner, others!):  Any thoughts?
>
> Michael Stokes Paulsen
> University of Minnesota Law School

----------------------
tom berg
tcberg at samford.edu