Flaws of Thornton

[Eugene Volokh]

David Cruz writes:

> I'm not sure whether this makes any difference to the question of whether
> the "priest-penitent" privilege is relevantly "like" the statute in
> Thornton, but what if that privilege were the _only_ one: no spousal
> privilege, no psychoprofessional privilege, etc.  Should that constitute
> an Establishment Clause violation?  And, on a perhaps more realistic note,
> what if the only other privilege were the attorney-client privilege?
>
> (I suppose I'm wondering in part about the relationship, if any, between
> Walz-ian establishment notions of inclusiveness and Rick's argument for
> robust free exercise general applicability.)

    David raises a very interesting question, but not one that I
think was raised on the facts of Thornton.  Employers are of course
subject to a vast range of substantial burdens from various
regulatory schemes aimed at protecting this or that interest of
their employees.  The mandatory Sabbatarian accommodation law is just
one of a multitude.

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                                              Eugene Volokh
                                              UCLA Law School
                                              (310) 206-3926
                                              fax (310) 206-7010