Free Exercise Clause and substantial burdens

[Berg, Thomas C.]

On Alan's point #2, I agree with Eugene that the Free Exercise Clause can
have both antidiscrimination and substantive-liberty aspects.

On Alan's point #1, I can see that there is a question of standing in his
hypothetical about the sandwich law -- i.e. if the plaintiff has no
intention of engaging in the prohibited behavior.  But once the basic injury
rules of standing are satisfied, I don't see why there should be an
additional requirement of "substantial burden" in the case of flat-out
discrimination against private religious conduct.

Suppose that a state imposes a $10 yearly license fee surcharge on school
buses owned by religious schools, as compared with the fee for buses owned
by secular private schools.  Imagine that the state offers a statistical
study showing that on average religious school buses travel further each day
(which might qualify as a justification under default rational-basis
review).  Even a school with five buses would have only a $50 a year injury,
which probably would not qualify itself as a "substantial burden" under the
caselaw defining that term from exemptions cases -- indeed it would place
far less financial pressure on the religious school and parents than would
the selective denial of voucher benefits.  But I would hope that we would
want to subject the bus law to strict scrutiny and make the state charge bus
fees more precisely.

Peter Eliasberg suggested that this result can be reached, but under the
Equal Protection or Establishment clauses instead.  I suppose that if the
principle is the same, the clause is not so crucial; but neverthless it
seems to me that the Free Exercise Clause is the most natural place to
locate the antidiscrimination rule.  Discrimination against private
religious conduct, when motivated by secular reasons, is not plausibly
characterized as an establishment of religion.  And under equal protection,
if we ask why discrimination against private religious conduct should be
strictly scrutinized, we are quickly driven back to the religion clauses, in
particular free exercise.

Tom Berg
University of St. Thomas School of Law (Minneapolis)





-----Original Message-----
From: A.E. Brownstein
To: RELIGIONLAW at listserv.ucla.edu
Sent: 7/22/02 7:32 PM
Subject: Re: Free Exercise Clause and substantial burdens

I'll bite (or at least nibble).

1. Because it makes no sense to think of free exercise as a pure
equality
right. There is an intrinsic liberty dimension to the right. For
example,
does a law prohibiting Orthodox Jews from eating ham and cheese
sandwiches
on Yom Kippur violate the Free Exercise Clause? The law is
discriminatory
on its face, but it does not burden the subject of the law's ability to
practice their faith.

2. Because the limits placed on the free exercise clause (denying its
applicability to neutral laws of general applicability) exist, not
because
the right is perceived solely or even primarily in equality terms, but
rather because of separation of powers and feasibility concerns relating
to
open ended judicial subjectivity and the anarchy intrinsic to a world
that
respects freedom of conscience (according to Scalia).

Alan Brownstein
UC Davis



At 11:19 AM 7/22/2002 -0700, you wrote:
>     Now that the Free Exercise Clause is seen as chiefly involving a
> nondiscrimination rule, rather than as a substantive liberty rule, why
> would the substantiality of the burden still matter?  In other
> nondiscrimination contexts, such as the Equal Protection Clause ban on
> race and sex discrimination, or the Free Speech Clause ban on
> content-based speech restrictions, there's no substantiality threshold
--
> why would one still remain here?
>
>     Eugene
>
>-----Original Message-----
>From: Peliasberg at AOL.COM [mailto:Peliasberg at AOL.COM]
>Sent: Monday, July 22, 2002 11:07 AM
>To: RELIGIONLAW at listserv.ucla.edu
>Subject: (no subject)
>In case there was any confusion from my previous response, I was not
>broadly endorsing discrimination against religion, or arguing that the
>Constitution permits it  I was saying that after the Supreme Court's
quite
>substantial narrowing of the Free Exercise Clause, my reading of the
cases
>is that a substantial burden against religion is necessary to have a
claim
>under that clause (an argument that Judge McKeown made in her dissent).
I
>still think that the Establishment Clause and/or the Equal Protection
>Clause may provide a good basis to argue that the discrimination is
>unconstitutional.  I think it is much harder to argue that all
>discrimiation, even in the provision of funds, constitutes a
substantion
>burden on the exercise of religion and therefore provide a valid Free
>Exercise claim.
>Peter