Coercion and religious exemptions
VOLOKH at law.ucla.edu
Sun Nov 28 13:10:40 PST 2004
I've been trying to think a bit more about the Establishment Clause no-coercion doctrine. It seems to me that if coercion is defined as government-caused pressure to engage in religious doctrine or profess a religious belief -- including a belief that one doesn't possess -- then the distribution of any sufficiently valuable benefit only to religious people would qualify as coercion.
The AA prison cases hold, I think correctly, that requiring religious exercise (let's set aside whether AA is religious exercise) as a condition of getting increased family visitation rights is coercive. Likewise, I would assume that preferring religious over nonreligious parents in child custody decisions would be treated as impermissibly coercive, because it would pressure parents to act religiously and generally to feign religion. (Am I mistaken on this?)
Yet if this is so, then presumably offering a draft exemption only to religious observers would be impermissible coercive (which makes Welsh and Seeger especially apt). Why wouldn't it also apply to offering unemployment compensation to religious Sabbatarians, or most other religious objectors? I assume that some benefits -- for instance, the ability to wear headgear -- are fairly low in value to nonreligious people; but many other benefits would be valuable enough that people might feel pressured to claim religiosity.
One possible response to this would be that exemption regimes are indeed somewhat coercive, but are nonetheless justified to prevent worse burdens on the religious objectors.
Another possible response would be that pressure to actually engage in religious practices or make religious statements (as in Lee v. Weisman or the AA cases) counts as impermissible coercion, but simply pressure to feign religion, or to assert a religion that one has fallen away from, is not. Would that make sense? Wouldn't pressure to say "I, as a Jew believe in observing the Sabbath" when in reality one has lost one's faith in God or the need to obey God's laws be similar to the pressure to participate in a 12-step program that requires you to acknowledge a Higher Power?
A third possible response would be that some of the benefits are so slight that we shouldn't feel concerned about the pressure -- for instance, an offer of a draft exemption or of extra family visitation privileges is a great enough benefit, but an offer of Saturdays off (under Title VII) or of unemployment compensation if you quit because you don't want to work Saturdays (under Sherbert) is not. But can that be reconciled with Lee v. Weisman, where the Court suggested that conditioning the benefit of going to one's high school graduation on participating in a religious exercise is impermissibly coercive?
I'd love to hear what others think about this. Thanks,
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