RFRA and exclusion of antidiscrimination law
dlaycock at MAIL.LAW.UTEXAS.EDU
Wed Nov 11 13:30:54 PST 1998
I'm not sure Sam has it quite right either, but I'm sure Eugene doesn't.
Deciding whether the employee was fired for religious reasons inevitably
leads to assessment of the religious belief. Defendant says its religious,
but does it seem religious to jurors? Defendant says it believes this, but
did it really believe something that seems so unbelievable, unfair,
unreasonable, different from my understanding of what seems like a similar
religion, or whatever, to the factfinder? As Justice Jackson said in
dissent in Ballard, the question of what is believed is not readily
separated from the question of what is believable. But what is believable
to one steeped in a faith tradition can be a very different thing from what
is believable to one from the outside, first exposed to it in an adversary
proceeding. And as our own Patrick Schiltz has said, no matter what theory
you try one of these cases on, the trial degenerates into whether the jury
approves of the religion. So whether plaintiff was fired for religious
reasons is not a simple fact question, and the trial of that question plays
out very differently for free exercise purposes than in other contexts.
In addition, whether the claim is race, sex, or religion, the risk of
litigation error is high. And the risk of litigation error has a different
significance when constitutional rights are at stake than in other
contexts. Over a series of claims against churches, it is inevitable that
some of them will be wrongly decided against the church. Those decisions
are constitutional violations, however inadvertent. In some contexts we
have to live with such errors; the simplest understanding of the
ministerial exemption is that we don't have to live with them there.
At 02:15 PM 11/10/1998 -0800, you wrote:
> I don't think this is quite right. You may fire the employee if
>you have a good reason, a bad reason, or no reason at all.
>Antidiscrimination law just says that you can't fire him because of
>race, religion, sex, and the like. The jury isn't asked to "weigh" or
>"balance" anything; it's only asked a factual question: Did you fire
>the employee because of race, religion, sex, etc.? For Free Ex Cl
>purposes, this inquiry seems identical to the standard intent or
>motivation inquiries, e.g., when you killed so-and-so, did you have a
>reasonable fear that he was going to kill you?; when you took
>this-and-such property, did you believe it was your own?; did you ingest
>the peyote knowing that it was peyote?; and so on.
>Sam Ventola writes:
>> In a discrimination case, it is not illegal to fire the
>> employee. You may fire the employee if you have a "good"
>> reason. You could try to convince the jury that you didn't
>> like the minister's (or minister applicant's) theology, but
>> they may choose to reject your explanations and decide those
>> reasons weren't good enough - hence it was really the
>> race/age/national origin etc. If it's a handicap claim, the
>> inquiry is whether the applicant is "otherwise qualified"
>> and whether a "reasonable acommodation" can be made.
>> Contrast this with the controlled substances law at issue in
>> Smith. It is no defense that you lit up the peyote for a
>> "good" reason. In fact, nobody inquires into your
>> motivations; you are liable under the law regardless of your
>> If there is a lack of liability if you have a "good" or
>> "reasonable" reason for your actions (either through the
>> elements of the claim or through an affirmative defense),
>> the claim involves case-by-case balancing and is not
>> governed by Smith. By its terms, Smith applies only when
>> liability applies regardless of the strength of the reason,
>> as the court seeks to avoid weighing the worth of religious
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