Sabbatarians and deadlines

Berg, Thomas C. TCBERG at
Mon Mar 27 11:25:31 PST 2006

A few reactions:
1. Would courts see this as a Braunfeld v. Brown case?  I.e. one in which
the state's rule does not directly conflict with (i.e. visit some legal
consequence as a result of) the religious duty -- as the Sunday closing law
did not directly conflict with the Orthodox shopkeepers' Saturday Sabbath
duty  -- but rather the state's rule interacts with the religious duty to
make it, indirectly, more costly to follow the latter (in that case,
effectively meaning that the Orthodox business has to be closed two days a
week instead of one).  Braunfeld said that "indirect" burdens like this
don't trigger strict scrutiny, in part because of the sort of parade of
horribles that Steve Jamar raises.  I can see differences between this case
and Braunfeld, but the indirect-direct distinction would cut off the parade
of horribles, and it would explain much of the pattern of accommodations
Steve describes (changed or alternate days for a competition, test, or
meeting itself, where otherwise religious duty would directly prevent the
student from participating).
2. But if Eugene's hypo is as strict as he says, i.e. that students need the
whole time allocated to complete the exam/competition, then the burden looks
direct -- creating an absolute conflict rather than simply making it more
difficult or complicated for the religious believer to put in as much time
as others (requiring some choices of the believer, somewhat less sleep,
etc.).  The strictness of the hypo becomes more plausible as the relevant
time period is shorter.  The lost day makes up a greater percentage of a
shorter time period; the cost of one lost day can be more easily spread over
five or six other days than over two others.  As the time available for
cost-spreading is shorter, the burden surely at some point becomes direct,
analogous to Sherbert rather than Braunfeld (e.g. imagine a 24-hour
take-home in which 18 of the hours allocated were on the student's Sabbath).
3. RFRA may replace a flat direct/indirect distinction with a case-by-case
analysis of the seriousness of the burden.  That might be more consistent
with the statutory term "substantial" burden (and I don't believe that
RFRA's legislative history positively referred to Braunfeld as it positively
referred to Lyng v. Nw. Indian Cemetery Prot. Assn., another pre-Smith case
interpreting cognizable "burdens" narrowly).  If this is the right
interpretation of RFRA, there's plenty of room for a court to differentiate
among the burdens involved in shorter and longer time periods.
4. Sherbert later read Braunfeld as resting also on the interest in having a
uniform day of rest.  Whatever one thinks of that rationale (and of course
the day of rest has more of a religious background than this policy does),
the need for uniformity  seems even weaker in the case of a take-home exam
or competition (why can't different students pick up and return them at
different times, as is often done with exams and competitions?).  There
might be a different state interest here against giving a student an extra
day:  the state might worry that even if the student is not physically
working on the exam on the Sabbath, he or she could be thinking about it and
thereby gaining an advantage (however conscientious one might be, it could
be hard to keep the problem out of one's head).  In the case of the
three-day exam, there is an easy less restrictive alternative:  allow the
student to take it over three days that don't include the sabbath (there's
no problem with that except the weak interest in uniformity).  Even a
six-day period can be largely tailored to individual situations, now that
assignments can be (and so often are) given out and submitted
electronically.  But for an assignment of a week or longer, avoiding the
Sabbath isn't an option.  Together with the greater ease of time-spreading,
it seems to me this makes the case for a compelled exemption weaker in the
week-long case -- even if it might be a good idea for the school to
accommodate in that situation as well.
My bottom line is that, as in most other exemption cases, there are sensible
distinctions that can be made that neither reject all exemption claims nor
grant them all.
Tom Berg
University of St. Thomas (Minnesota)


From: Volokh, Eugene [mailto:VOLOKH at]
Sent: Mon 3/27/2006 11:06 AM
To: Law & Religion issues for Law Academics
Subject: RE: Sabbatarians and deadlines

    I sympathize with Steve's general argument, but I wonder how it fits
within the RFRA framework.  Is it that having five days instead of six -- or
two days instead of three -- isn't a substantial burden?  That it is a
burden, but denying the exemption passes strict scrutiny?  That despite the
RFRA language, some test other than strict scrutiny applies?

-----Original Message-----
From: religionlaw-bounces at
[mailto:religionlaw-bounces at] On Behalf Of Steven Jamar
Sent: Monday, March 27, 2006 8:01 AM
To: Law & Religion issues for Law Academics
Subject: Re: Sabbatarians and deadlines

Where would this end?  Sabbatarians who observe a day of no work, including
studies, would need an extra 16 days to prepare for classes?  Or an extra
reading period to prepare for exams?  And it would need to be worked out so
that they get the same number of days between each exams? 

How is the law review competition not, for constitutional purposes,
conducted by the school, btw?

We try to accommodate those students by not having assignments due on
Saturdays.  And we make special arrangements for moot court competitions to
hold arguments on Fri and Sunday for those participants.  And so on.  But I
see no obligation to accommodate to the extent your inquiry suggests.


On Mar 24, 2006, at 7:57 PM, Volokh, Eugene wrote:

Thinking about some of our UCLA Law School assignments,
especially ones that have relatively short deadlines, led me to ask
this:  Do public universities in states with accommodation regimes
(under RFRA or under Sherbert/Yoder-based state Free Exercise Clause
rules) have an obligation to extend some deadlines for Sabbatarians?  

The law review competition, for instance, starts Thursday
afternoon and ends Wednesday afternoon; it's generally believed that
many students really do need all six days to do a good job.  Say the
competition was conducted by school (which it isn't, but say it was).
Sabbatarians would have only five days on which they could do the
competition, but others have six; would the school have an obligation to
give Sabbatarians an extra day?

What if this were a 72-hour take home exam, given Friday morning
and due Monday morning?

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Prof. Steven D. Jamar                                     vox:  202-806-8017

Howard University School of Law                           fax:  202-806-8428

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- Martin Luther King Jr., "Strength to Love", 1963    

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