Transcript in case dismissed because plaintiff Muslim woman refused to unveil to testify

[Christopher C. Lund]

Well, let me ask you this:  How does RFRA deal with these cases?  With general applicability, we can begin with the rule and the exceptions therein.  The plaintiff can't simply attack the rule -- he can't simply say the rule serves unimportant interests -- he can only instead suggest the rule's interests are unimportant by reference to the exemptions that have already been made to it.  That's a bounded inquiry; RFRA, by contrast, is much more open-ended, and the problem of incommensurability looms larger.  But yet courts handle the line-drawing problems. I'd say the key is that, under both RFRA and general applicability, once a burden on religious exercise is established, we move away from the mentality of the religious observer (i.e., I am free to trespass on another's land to protect my property from destruction; adhering to my religious beliefs is of the same order of magnitude for me) to a focus on the government (i.e., Does the defense-of-property exception undermine the general rule regarding private property?   Does it reveal that the government's interest in enforcing the law against the religious observer is insubstantial?).   Now general applicability is different than RFRA in another way; the burden is shifted, so the government gets a finger on the scale when the religious adherent is trying to convince the court that the analogy works.  But in cases where the government is exempting those with modest secular burdens (like, I would argue, a 100-mile trip to the courthouse), but not religious burdens that seem strikingly greater (a Muslim women's adherence to religious command), then I don't think courts are entitled to back down from general applicability's implications anymore than I think courts are free to disregard RFRA because it creates difficult line-drawing problems.  That said, I can't see a general applicability challenge succeeding on the facts you list below, with maybe two exceptions.  I think it's interesting to rethink the ministerial exception as not an exception to Smith, but as called for by the interplay between general applicability and the secular BFOQ exception.  That is, if secular groups can use gender as a BFOQ for hiring in certain crucial positions, how can the state deny a religious group the right to use gender as a BFOQ for hiring a minister?  I'm also interested in the analogy to fair use, and whether the secular exception for fair use should maybe open up the possibility of a religious exemption, but I know nothing about that and should wait at least until I read Tom Berg's piece on the subject. All the best,Chris

> Date: Mon, 18 Dec 2006 21:13:20 -0800> From: VOLOKH at law.ucla.edu> To: religionlaw at lists.ucla.edu> Subject: Re: Transcript in case dismissed because plaintiff Muslim woman refused to unveil to testify> > So how would you handle a religious person who feels a religious> duty to discriminate based on sex, and analogizes to the BFOQ exception,> which lets people discriminate based on sex for privacy reasons, or for> artistic verisimilitude reasons? "My right to practice my religion,"> he'd say, "is at least as important as someone else's right to> discriminate based on sex in casting a play." How do you decide that?> > Or say a religious person feels a religious duty not to testify> against a parent or a child (as some Jews do), or against a> coreligionist (as I've heard some claim that some Muslims do). "My> right to practice my religion," he'd say, "is at least as important as> someone's right not to testify against a spouse, or not to testify in a> way that incriminates himself, or not to testify against a patient.> Sure, we want to avoid discouraging people from visiting> psychotherapists; but we should want to at least equally avoid> discouraging people from violating their felt religious obligations."> > Or say a religious person feels a religious duty to copy someone> else's private letters, or to make and sell copies of another's> religious work. "My right to practice my religion," he'd say, "is at> least as important as the interests embodied in the sixteen-plus> exceptions to the Copyright Act."> > Or say a religious person feels a religious duty to trespass on> someone else's property (for instance, to make a pilgrimage to a site> that he sees as holy; assume that the site is on another's unimproved> land, not in the property owner's backyard). "My right to practice my> religion," he'd say, "should be treated as comparable to any other> necessity defense. I am free to trespass on another's land to, for> instance, escape a blizzard, or even to protect my property from> destruction; I should be equally free to trespass in order to avoid> violating my religious beliefs."> > How are courts to decide which analogies work and which fail?> What's the legal test they're supposed to be using?> > Eugene> > > ________________________________> > From: religionlaw-bounces at lists.ucla.edu> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Christopher C.> Lund> Sent: Monday, December 18, 2006 8:27 PM> To: Law & Religion issues for Law Academics> Subject: RE: Transcript in case dismissed because> plaintiff Muslim woman refused to unveil to testify> > > The check on all of these is that the religious claimant> has to analogize his claim for exception to a preexisting secular> exception. He or she has to convince the court that the secular> exception already harms the rule more than the religious claim for> exception would. A religious group arguing for a right to involuntary> human sacrifice is going to have a hard time convincing anyone that> their claim for an exemption is really like the existing one for> self-defense. A religious individual claiming a right to trespass onto> other person's land is going to have hard time analogizing his case to> the exception for necessity or for the police. In the latter case, for> example, the exceptions for necessity and law enforcement are narrow> doctrines (necessity requiring a showing of greater harm; the "fleeing> felon" doctrine being a narrow exception to the warrant requirement)> which create rarely used, individual-specific, and context-dependent> exceptions to the general rule. A freestanding religious exemption> would be significantly more broad. I think courts are fully capable of> drawing lines to differentiate between those cases and our instant case.> > To be sure, I do think this will require courts to> exercise judgment. They will have to determine what the concerns are> behind the rule, evaluate whether the rule is underinclusive with> respect to those concerns, and weigh the harm to the rule of the> existing secular exceptions against the potential harm of the religious> claim for exception. Perhaps to some, this invites courts back into the> sort of judicial balancing from which Smith meant to depart. But I> think all of this is present in Lukumi and its language about> underinclusiveness. Lukumi was just too easy of a case to have all> these details flushed out.> > None of this should be taken as a defense of general> applicability. I too think it's a poorly calibrated system, although I> would also add that I think it severely underprotects religious> exercise. But I don't think the sky is going to fall if a robust> version of general applicability is adopted. > > > ________________________________> > > > > > > > Date: Mon, 18 Dec 2006 13:39:29 -0800> > From: VOLOKH at law.ucla.edu> > To: religionlaw at lists.ucla.edu> > Subject: RE: Transcript in case dismissed because> plaintiff Muslim womanrefused to unveil to testify> > > > Would we say that Title VII's ban on sex> discrimination in> > employment isn't generally applicable, given that it> has various> > exceptions (for small companies, for bona fide> occupational> > qualifications, and he past for conduct outside the> U.S.)? What about> > statutory rape law -- is that not generally> applicable, in states that> > have exceptions for married couples, or for youngsters> who are close> > enough in age to each other? What about copyright law,> which sets forth> > a presumptive prohibition on copying in section 106,> and then has (at> > least) sixteen exceptions in 17 U.S.C. secs. 107> through 122? What> > about the general duty to testify, which is riddled> with exceptions?> > Murder law, which has exceptions not just for> self-defense and execution> > of a lawful sentence, but also for provoked killings> (which aren't> > murder even though they are manslaughter)? Trespass> law, which has> > exceptions for necessity, government action, adverse> possession /> > easements by prescription, and so on? Breach of> contract law, that has> > exceptions for unconscionable contracts, contracts> against public> > policy, contracts with incompetents, and more> (especially when we speak> > specifically of the specific performance remedy for> breaches of> > contract)?> > > > How many laws are there that *don't* have exceptions> that embody> > value judgments that some secular interests justify> the exception?> > After Smith and Lukumi, is it really the case that> exemption requests> > from all those statutes are constitutionally subject> to strict scrutiny> > -- and the demanding form of strict scrutiny applied> by Lukumi to> > non-generally-applicable laws, complete with> underinclusiveness> > analysis, rather than just the weak strict scrutiny> applied in Lee, Bob> > Jones, and other Yoder-to-Smith cases?> > > > Eugene> > > > > > ________________________________> > > > From: religionlaw-bounces at lists.ucla.edu> > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf> Of Christopher C.> > Lund> > Sent: Monday, December 18, 2006 1:31 PM> > To: Law & Religion issues for Law Academics> > Subject: RE: Transcript in case dismissed because> plaintiff> > Muslim womanrefused to unveil to testify> > > > > > I think there is a real question as to whether the> rule here is> > generally applicable. By allowing a witness who is> more than 100 miles> > away to testify by written deposition, Michigan has> made a value> > judgment -- whatever the value of demeanor evidence,> it is not worth> > forcing witnesses to travel more than 100 miles to the> courthouse. The> > burden of a two-hour drive is enough for Michigan to> relax its> > insistence on demeanor evidence; the burden of a> religious commandment> > is not.> > > > Now courts may simply take the rule and the exception> as the> > government frames them (the rule is a rule about> decorum or dress, and> > not really about demeanor), rather than looking at the> stated concerns> > behind the rule and the rule's potential> underinclusiveness in> > responding to those concerns. But I think that's a> mistake, and a poor> > reading of Lukumi.> >
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