Medical workers who don't want to participate in abortion s

[Alan Brownstein]

Tom and Eugene's thoughtful comments are pretty persuasive, but I'm not 
entirely convinced that we can ignore what Tom calls the focus on 
relative benefits whenever a law facially applies to both religious and 
nonreligious groups. I appreciate the importance of facial neutrality or 
generality, but why should that completely outweigh the burden on third 
parties, for example,or whether the law has the effect of 
disproportionately benefitting certain religions and not others. Or to 
put it another way, should we entirely ignore the purpose of the law, and 
whether the burdens created by the law disproportionately impact 
nonreligious individuals or members of minority faiths. 

A lot depends on what is considered a general and neutral law. Don't both 
the beneficiaries of an accommodation and those who bear the costs of the 
accommodation need to be taken into account? Does a law tracking Thornton 
that requires employers to accommodate everyone who wants Sunday off 
violate the Establishment Clause? Do we resolve concerns about religious 
institutions discriminating on the basis of religion in hiring staff to 
operate publicly funded programs by allowing all ideologically oriented 
organizations receiving public funds to discriminate on the basis of 
religion in hiring? 

I don't claim to have the answers to these questions. I'm just not sure 
that generality of beneficiaries is a sufficient principle to adequately 
further Establishment Clause values.

Alan Brownstein
UC Davis

> I agree with Eugene that you probably need an additional step in the
> argument to fit the abortion conscience exemption into the Texas Monthly
> test -- namely "that when a law treats religious and nonreligious 
people and
> institutions equally, courts shouldn't guess what fraction of the 
benefits
> flow to the religious."
>  
> It seems to me, though, that this additional step is not just Eugene's 
own
> argument, but is one that the Court has explicitly adopted in Mueller v.
> Allen and in Zelman v. Simmons-Harris.  In both those decisions, the 
Court
> explicitly found it irrelevant that a very large percentage of benefits 
of a
> neutral program based on individual choices flowed to religious 
education,
> because such statistics cannot produce a judicially administrable test 
and
> because the program did not skew the individuals' choices toward 
religion.
> And both of those decisions involved financial subsidies in the Court's 
view
> (vouchers in Zelman and tax deductions in Mueller -- the latter might 
not be
> best characterized as financial subsidies, but certainly the former 
are).
> If the Court doesn't look at the percentage of benefits flowing to 
religion
> under a religion-neutral financial subsidy program, then as I argued 
before,
> a fortiori it shouldn't (and wouldn't) do so in the case of a
> religion-neutral exemption/accommodation for individual conscientious
> conduct, which lies even further away from the core theoretical and
> historical concerns of the Establishment Clause (and that is true even 
if
> it's an exemption from sanctions by private employers.)
>  
> For this reason, I don't think that in order to immunize accommodations 
of
> conscience that are neutral between religious and secular conduct from
> Establishment Clause challenge, one needs to buy into Eugene's principle
> that equal treatment of the religious and secular *always* satisfies the
> Establishment Clause.  In other contexts, such as direct aid, the 
delegation
> of government power, or government speech in public schools, the
> Establishment Clause case law still seems to say that religious
> beneficiaries and ideas must be treated differently from secular ones.  
But
> again, one can make a quite convincing argument -- even if it is not
> entirely open and shut -- that those situations are much closer to the
> theoretical and historical core of the Establishment Clause than are
> situations where the government acts simply so that individuals can 
continue
> to pursue their religious exercise without restriction (governmental or
> private).
>  
> So I'd still say that Eugene's question about religious-and-secular
> accommodations is not really much of an open question under current 
judicial
> doctrine.  Others on list, of course, might advance normative theories 
under
> which Thornton could apply even to a law that accommodated secular 
conduct
> as well.  But I don't see much in the case law to support them.  And I 
also
> don't think that such a theory would stand up normatively either, 
because
> accommodations to allow individual religious exercise to proceed 
unmolested
> are far from the core concerns of the Establishment Clause.  It would 
be a
> double stretch of the Establishment Clause to apply it to a law that not
> only seeks simply to ensure that individual religious conduct is left
> unrestricted, but that does so by giving the same protection to the
> equivalent secular conscientious conduct.
>  
> Tom Berg
> University of St. Thomas School of Law, Minnesota
>  
> 
>   _____  
> 
> From: Volokh, Eugene [mailto:VOLOKH at law.ucla.edu]
> Sent: Sun 5/16/2004 2:00 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: RE: Medical workers who don't want to participate in 
abortions
> 
> 
> 
> I like Tom's argument, but I don't think it's quite as open and shut as 
the
> post below suggests.  The property tax exemptions for nonprofits really 
did
> end up flowing to "a large number of nonreligious groups."  The right 
not to
> be dismissed or disciplined for not participating in abortions will
> overwhelming benefit, I suspect, religious objectors; there certainly 
are
> some secular conscientious objectors to abortion (e.g., Nat Hentoff, to 
name
> a public one), but I'd guess that these are a rather small subset of all
> beneficiaries of the law.
> 
> 
> This having been said, I agree that this *should* be the rule, because I
> think that when a law treats religious and nonreligious people and
> institutions equally, courts shouldn't guess what fraction of the 
benefits
> flow to the religious.  That's my view as to school choice programs, and
> it's my view as to accommodations of religious and conscientious 
objectors.
> (I don't view the Free Exercise Clause as making a difference here -- 
the
> abortion conscientious objector laws protect even against firings by 
private
> hospitals, where the Free Exercise Clause isn't involved even under the
> Sherbert/Yoder framework; and if we're talking about broader "free 
exercise
> values" that are applicable even to private action, then it seems to me
> equally legitimate to invoke such values as a support for subsidies for
> private education, which likewise help religious parents exercise their
> religion.)  As I mentioned in my original post, I think the equal 
treatment
> of religious and secular objectors provided by the abortion 
conscientious
> objector laws should indeed distinguish them from the law in Thornton 
(even
> though the Thornton opinion mentioned the religious preference only in
> passing).  But I would have thought that this would be controversial,
> because many people do not take my Establishment-as-equal-treatment
> position.
> 
> 
> So let me ask:  Does anyone on the list think that the Thornton 
doctrine is
> *not* limited to government-mandated exemptions that are for religious
> objectors only, and that it might apply to at least some such exemptions
> that facially cover nonreligious conscientious objectors, too?  If the
> answer is no, then there need be no further discussion.  But if the 
answer
> is yes, then I wonder how the abortion conscientious objector laws would
> fare under that view of Thornton.
> 
> 
> Eugene 
>   
> Tom Berg writes: 
>   
> As far as caselaw doctrine goes, isn't Eugene's question answered by the
> Brennan plurality opinion in Texas Monthly (only a plurality, but also 
the
> opinion in the case most restrictive of accommodations)?  The Court 
struck
> down the exemption from sales taxes for religious publications.  The
> plurality first distinguished the property tax exemptions upheld in 
Walz,
> among other programs, on the ground that "the benefits derived by 
religious
> organizations flowed to a large number of nonreligious groups as well.
> Indeed, were those benefits confined to religious organizations, they 
could
> not have appeared other than as state sponsorship of religion."  489 
U.S. at
> 11 (citing Thornton v. Caldor, among others).
> 
>          
>         The plurality then proceeds to articulate a test for the
> constitutionality of such exemptions:  "Insofar as th[e] subsidy [of a 
tax
> exemption] is conferred upon a wide array of nonsectarian groups as 
well as
> religious organizations in pursuit of some legitimate secular end, the 
fact
> that religious groups benefit incidentally does not deprive the subsidy 
of
> the secular purpose and primary effect mandated by the Establishment 
Clause.
> However, when government directs a subsidy exclusively to religious
> organizations that is not required by the Free Exercise Clause and that
> either burdens nonbeneficiaries markedly or cannot reasonably be seen as
> removing a significant state-imposed deterrent to the free exercise of
> religion, it [violates the Establishment Clause]."  Id. at 14-15.
> 
>          
>         The problem with the exemption in Thornton, as Eugene notes, was
> that it "burden[ed] nonbeneficiaries markedly" through its absolute
> weighting of the balance in favor of the religious employee over the
> employer and over the secular employees who would have to replace him 
on his
> Sabbath.  The passage from Texas Monthly seems to make clear that this
> question of "burden[ing] nonbeneficiaries markedly" kicks in only when 
the
> exemption is religion-specific.  When, as is almost certainly true in 
the
> abortion conscience case, the exemption "flow[s] to a large number of
> nonreligious [persons] as well," the focus on relative burdens is 
simply not
> triggered.  The exemption, as Sandy observed, is viewed more as the 
kind of
> "secular" adjustment of private economic relations that the legislature 
does
> all the time, and therefore subject to minimal or no review.
> 
>          
>         I think this analysis applies a fortiori to the abortion case
> because (1) the Brennan plurality is the Texas Monthly opinion most
> restrictive of legislative accommodations and (2) the opinion treats tax
> exemptions as a financial subsidy, which is a category of government 
action
> that strongly implicates the Establishment Clause, and a category that 
is
> much harder to apply to an exemption from performing abortions.
> 
>          
>         On the latter point, all the Establishment Clause decisions that
> strike down applications of a facially neutral statute that incidentally
> helps religion involve either (a) direct financial aid to religion 
(Lemon),
> (b) affirmative, intentional promotion of religion in the public schools
> (Wallace v. Jaffree), or (c) delegation of government power to a 
religious
> group (Larkin, Kiryas Joel).  Simple exemption of religious conduct from
> restrictive regulation is quite different from these cases, largely 
because
> of the implications of the Free Exercise Clause.  I would say that it 
is so
> different that religion-specific exemptions should be approved and in 
many
> cases should be mandated.  That is not the Court's position (Smith), 
but the
> Court clearly does recognize that exemption is different from 
affirmative
> promotion (see Presiding Bishop v. Amos).  The different status of an
> exemption surely is enough to mean that exempting religion along with
> secular forms of conscience does not trigger the Establishment Clause --
> that is, it does not trigger the inquiry of Thornton and Texas Monthly 
about
> the relative degree of burden that the exemption imposes on others. 
> 
>          
>         Tom Berg 
>         University of St. Thomas School of Law, Minnesota 
>          
> 
>