Sabbatarians and deadlines
Volokh, Eugene
VOLOKH at law.ucla.edu
Mon Mar 27 11:31:11 PST 2006
I appreciate Marty's point on this, and I agree that courts must
consider the degree to which exempting similarly situated plaintiffs
(which I take it includes the category of those whose situations
couldn't readily be distinguished) would undermine the government
interest. But I had thought that the premise of RFRA regimes was that
when a distinction could be drawn, it would be better to give an
exemption to some (at least if doesn't go so far as to get to
denominational discrimination) than to deny it equally at all.
That was certainly the dissent's view in Smith, and implicitly
the majority's in Sherbert. Peyotists should get an exemption,
marijuana and cocaine users probably shouldn't; "where would [it] end?"
-- at the point where the government interest got considerably higher.
Likewise, Sherbert should get an exemption, those who refused to work at
all shouldn't; "where would [it] end?" -- at the point where the
government interest got considerably higher?
Likewise, I take it (under the logic of RFRA), here: If giving
students 16 extra days per semester to prepare would mess up the exam
schedule too much, or be unfair to other students, then that
accommodation should be rejected; but if giving them one extra day on a
3-day or 6-day assignment wouldn't cause such problems, then that
accommodation should be accepted. (Also, I take it that the burden on
students of having one fewer day in a 3- or 6-day period to prepare a
paper is greater than the burden of having 16 fewer days in the semester
-- there's much more likely to be slack time during a semester that
Sabbatarian students can use to study; in a 3-day take home exam, or
even a 6-day take home assignment, there's likely to be less such slack
time).
> -----Original Message-----
> From: marty.lederman at comcast.net [mailto:marty.lederman at comcast.net]
> Sent: Monday, March 27, 2006 11:22 AM
> To: Law & Religion issues for Law Academics; Law & Religion
> issues for Law Academics
> Cc: Volokh, Eugene
> Subject: RE: Sabbatarians and deadlines
>
>
> "RFRA therefore seems to be an attempt to *require* courts to
> grant exemptions (at least sometimes) *despite* this slippery
> slope risk"?
>
> That's not my understanding. In assessing the state
> interest, surely the court must evaluate the *entire class of
> persons who would be entitled to the exemption* under the
> plaintiffs' theory, i.e., all those religious believers
> similarly situated and, perhaps, all those whose cases could
> not readily be distinguished. This is what the Court
> regularly did in the Free Exercise cases on which RFRA is
> pattered, including Sherbert, and I don't see any reason why
> it wouldn't be true under RFRA, as well.
>
> Thus, courts could, and will, assess "Where will this end?"
> questions. None of which helps to answer your question about
> the deadlines and sabbatarians. On that question, I'm
> curious, Eugene: Assuming arguendo a "substantial burden" on
> religious exercise (and I realize it's a major assumption),
> how would you describe the the compelling state interest in
> *not* giving the sabbatarians an extra day, at least in cases
> where the exemption regime would not be an administrative nightmare?
>
> -------------- Original message ----------------------
> From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
> > (1) I appreciate the arguments for this sort of
> "weighing," but I
> > wonder whether the weighing is consistent with the
> statutory language.
> > RFRAs generally provide that "Government shall not substantially
> > burden a person's exercise of religion, . . . except . . .
> Government
> > may substantially burden a person's exercise of religion only if it
> > demonstrates that application of the burden to the person .
> . . is in
> > furtherance of a compelling governmental interest; and . . . is the
> > least restrictive means of furthering that compelling governmental
> > interest." Sounds like three separate prongs (substantial burden,
> > least restrictive means, and compelling governmental interest), no?
> >
> > (2) Even if we are to engage in "weighing," would
> people care to
> > speak to how courts should evaluate the weight of the burden, the
> > weight of the interest, and whether denying the exemption is "the
> > least restrictive means" of serving the interest? In
> particular, how
> > are courts to evaluate the "[w]here would this end?" concern, given
> > that this concern is present in most religious exemption cases --
> > including Sherbert and Yoder, the two paradigm cases whose
> test RFRA
> > was intended to restore -- and that RFRA therefore seems to be an
> > attempt to require courts to grant exemptions (at least sometimes)
> > despite this slippery slope risk?
> >
> > Eugene
> >
> > -----Original Message-----
> > From: religionlaw-bounces at lists.ucla.edu
> > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> Steven Jamar
> > Sent: Monday, March 27, 2006 9:55 AM
> > To: Law & Religion issues for Law Academics
> > Subject: Re: Sabbatarians and deadlines
> >
> >
> > the burden and compellingness are not absolutes. it is a weighing
> > test with less burden needing to be shown if the state interest is
> > slight and more compellingness needing to be shown if the burden is
> > heavy.
> >
> >
> > so I reject the linear sort of analysis Eugene's question
> posits. I
> > think it reflects a serious misapprehension of the way this sort of
> > test works in these sorts of cases. "Strict scrutiny" is
> just a poor
> > label for what is really going on.
> >
> >
> > Steve
> >
> >
> > On Mar 27, 2006, at 12:06 PM, Volokh, Eugene wrote:
> >
> >
> > 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 lists.ucla.edu
> > [mailto:religionlaw-bounces at lists.ucla.edu] 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.
> >
> >
> > Steve
> >
> >
> > 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?
> >
> >
> > Eugene
> > _______________________________________________
> > To post, send message to Religionlaw at lists.ucla.edu
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> >
> > Please note that messages sent to this large list cannot be
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> >
> > --
> > Prof. Steven D. Jamar vox:
> > 202-806-8017
> > Howard University School of Law fax:
> > 202-806-8428
> > 2900 Van Ness Street NW
> > mailto:stevenjamar at gmail.com
> > Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar
> >
> >
> > "Rarely do we find men who willingly engage in hard, solid
> thinking.
> > There is an almost universal quest for easy answers and half-baked
> > solutions. Nothing pains some people more than having to think."
> >
> >
> > - Martin Luther King Jr., "Strength to Love", 1963
> >
> >
> >
> >
> >
> >
> > _______________________________________________
> > To post, send message to Religionlaw at lists.ucla.edu
> > To subscribe, unsubscribe, change options, or get password, see
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> >
> >
> > Please note that messages sent to this large list cannot be
> viewed as
> > private. Anyone can subscribe to the list and read
> messages that are
> > posted; people can read the Web archives; and list members can
> > (rightly or wrongly) forward the messages to others.
> >
> >
> > --
> > Prof. Steven D. Jamar vox:
> > 202-806-8017
> > Howard University School of Law fax:
> > 202-806-8428
> > 2900 Van Ness Street NW
> > mailto:stevenjamar at gmail.com
> > Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar
> >
> >
> > "I have nothing new to teach the world. Truth and
> nonviolence are as
> > old as the hills."
> >
> >
> > Gandhi
> > _______________________________________________
> > To post, send message to Religionlaw at lists.ucla.edu
> > To subscribe, unsubscribe, change options, or get password, see
> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> >
> > Please note that messages sent to this large list cannot be
> viewed as
> > private.
> > Anyone can subscribe to the list and read messages that are
> posted; people can
> > read the Web archives; and list members can (rightly or
> wrongly) forward the
> > messages to others.
>
>
>
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