RFRA and exclusion of antidiscrimination law
VOLOKH at mail.law.ucla.edu
Wed Nov 11 11:41:48 PST 1998
1) As I understood Sam's point, it was that antidiscrimination
laws generally -- laws barring race discrimination, sex discrimination,
religious discrimination, and so on -- fit into the Sherbert exception
to Smith because they involve "case-by-case balancing" (Sam's term). I
disagree: I think discrimination laws generally are no more
Sherbert-like in this respect than are other laws, which also inquire
into the defendant's mental state.
Whether a defendant's justification for not hiring someone is "I
have a religious reason not to hire women," "I have a nonreligious not
to hire women," "I have a religious reason for not hiring this person
that had nothing to do with her being a woman," or "I have a
nonreligious reason for hot hiring this person that had nothing to do
with her being a woman," the inquiry is the same: Did the person not
hire the person because she was a woman? True, if the defendant claims
a nonreligious reason that has nothing to do with the applicant's sex, a
jury might have a hard time determining whether his claim is true or
not, because the reason might seem so odd to the jury that the jury
might (erroneously) conclude that it's just pretext. But that's also
true in other cases -- if a defense to a trespass or theft case is "I
honestly believed this was my property because an angel came down and
told me 'though this doesn't look like your property, it actually is,
under the laws of this state,'" a jury might reject the defense as a lie
even if it is in fact true (and should thus work, because criminal
trespass or theft requires knowledge that the property isn't yours).
This doesn't make trespass law an occasion for "case-by-case balancing"
and thus a candidate for the Sherbert exception. Likewise for
2) I agree that the determination of whether a person does
indeed sincerely hold a religious belief -- relevant where the law gives
an exemption for those who hold such a belief, but not directly relevant
where there's a generally applicable antidiscrimination law -- is indeed
messy, for all the reasons Doug gives. But while this might be an
argument *for* a per se clergy exclusion from antidiscrimination law
(statutory or constitutional), I don't think this is an argument for a
traditional religious exemption (available of necessity only to those
who do have a religious belief) from antidiscrimination law more
3) This having been said, I do agree with Doug that there
should be a clergy exemption -- but not with Sam that antidiscrimination
law must generally, even post-Smith, be subject to strict scrutiny when
applied to all religiously believing employers.
> -----Original Message-----
> From: Douglas Laycock [SMTP:dlaycock at MAIL.LAW.UTEXAS.EDU]
> Sent: Wednesday, November 11, 1998 11:31 AM
> To: RELIGIONLAW at LISTSERV.UCLA.EDU
> Subject: Re: RFRA and exclusion of antidiscrimination law
> 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
> leads to assessment of the religious belief. Defendant says its
> 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
> 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
> to one steeped in a faith tradition can be a very different thing from
> is believable to one from the outside, first exposed to it in an
> proceeding. And as our own Patrick Schiltz has said, no matter what
> you try one of these cases on, the trial degenerates into whether the
> approves of the religion. So whether plaintiff was fired for
> reasons is not a simple fact question, and the trial of that question
> out very differently for free exercise purposes than in other
> 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
> significance when constitutional rights are at stake than in other
> contexts. Over a series of claims against churches, it is inevitable
> some of them will be wrongly decided against the church. Those
> are constitutional violations, however inadvertent. In some contexts
> 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
> >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"
> >"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
> >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
> >> reasons.
> >> 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
> >> reasons.
> >> Sam
> Douglas Laycock
> University of Texas Law School
> 727 E. Dean Keeton St.
> Austin, TX 78705
> 512-232-1341 (phone)
> 512-471-6988 (fax)
> dlaycock at mail.law.utexas.edu
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