Accommodation and fairness to others

[Douglas Laycock]

If the student with the 24-hour flu gets an exception, the Sabbatarian
probably has a free exercise claim and not just a RFRA claim.

I agree with Steve that any sensible application of the compelling
interest inevitably leads to a form of balancing with extra weight on
the side of the individual right.  The question is whether the
government interest compellingly outweighs the burden on religious
exercise.  The text of RFRA does not say this at all explicitly,
although as Steve points out, both substantial and compelling are terms
of degree.  But it is only common sense that a law that would
criminalize the central worship service of a faith requires more
compelling justification than a law that would make an optional
devotional practice more expensive.  It is impossible to reach sensible
results in constitutional cases if one ignores the weight of competing
interests; this is another reason why Smith is so perverse.

The talk of centrality in free exercise cases began in Yoder, where a
strong government interest in education was held not compelling, in part
because what was at stake was a quite marginal increment to education,
but also because the Court saw the burden on religion as so great.  The
Court perceived the consequences of enforcement to be destruction of the
Amish community; that was so central -- that burden was so great, in
RFRA terms -- that even the interest in keeping kids in school was not
sufficiently compelling to justify that burden.


Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
   512-232-1341 (phone)
   512-471-6988 (fax)

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Friedman,
Howard M.
Sent: Monday, March 27, 2006 4:04 PM
To: Law & Religion issues for Law Academics
Subject: RE: Accommodation and fairness to others

Prof. Lon Fuller used to say, "so long as you have judges, you cannot
stop them from using their judgment." And I think that is the case here.
I assume that if an in-class exam were scheduled for Saturday,
rescheduling it for a Sabbatarian would likely be required.  On the
other hand, if students are allowed to pick up a take-home exam and
spend 24-hours on it any time during a 7-day period, the Sabbatarian
should not need to be allowed to take the exam any time during an 8-day
period.  The Law Review competition hypo is closer.  I might want to
know: if a student had the flu for 24 hours during the competition
period, would the student be given an extra day?  Many of the legal
"tests" are surrogates for the question "what is fair?".
*************************************
Howard M. Friedman
Disting. Univ. Professor Emeritus
University of Toledo College of Law
Toledo, OH 43606-3390
Phone: (419) 530-2911, FAX (419) 530-4732
E-mail: howard.friedman at utoledo.edu
************************************* 

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, March 27, 2006 2:34 PM
To: Law & Religion issues for Law Academics
Subject: Accommodation and fairness to others

Marty writes:

> 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?

	I'm not sure there would be such a compelling interest.  Still,
I take it that one possible candidate is fairness to others:  While
having 5 days to do a project may be worse than 6 days, having 6 days
plus a day of rest may be better than 6 days without a day of rest.  The
question would then be:  Should the fact that the accommodation will
give the claimants a modest benefit compared to others justify denying
the accommodation, given that otherwise the claimants would probably
laber under a substantially greater detriment burden compared to others?

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