Accommodation and fairness to others

[Volokh, Eugene]

Doug Laycock writes:

> 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.

	(1)  Is this quite right on the facts?  A 24-hour flu will
likely make the sufferer *less* productive in the days that follow
compared to the unaccommodated people, even if the sufferer gets the
same six days of fluless time (since he gets an extra day of total time)
as do those who aren't accommodated.  A 24-hour day of rest will likely
make the sufferer *more* productive compared to the unaccommodated
people.

	(2)  Is this also quite right as a statement of law?  Is it
really the case that whenever the government offers any exemption, even
one that's given very rarely, it must also treat religious objections
the same way?

	(3)  I'm teaching criminal law for the first time this semester,
and this led me to think about this very issue.  Say that there's
something of an individualized system of assessment in provocation
cases, necessity cases, and the like.  The legal system therefore
downgrades from murder to manslaughter those homicides that are
reactions to "reasonable provocation" -- (controversially) infidelity,
(less controversially) the victim's assault on the defendant's family,
and the like.  This necessarily involves case-by-case judgment about
which provocations should count, and thus essentially case-by-case
exceptions to murder law.  Likewise, the Model Penal Code would allow a
necessity defense when "the harm or evil sought to be avoided by such
conduct is greater than that sought to be prevented by the law defining
the offense chaged"; this too necessarily involves case-by-case
exceptions to criminal laws.

	Does it follow that defendants who sincerely believe they were
religiously obligated to commit a homicide because of some provocation
(e.g., the victim's blasphemy, apostasy, or violation of some other
religious law) must likewise be punished only for manslaughter?  Does it
follow that people who commit what would otherwise be a crime in the
sincere belief that such an action is necessary to save souls, or for
that matter to prevent temporal divine retribution, are entitled to the
necessity defense?

	(4)  I had thought that Hernandez, Lyng, and Smith held that a
centrality inquiry was unconstitutional, because it unconstitutionally
required judges to weigh the importance of various religious practices.
I agree, though, that an inquiry into the magnitude of a burden
occasioned by the denial of a benefit would not run afoul of this -- the
question would be not how central taking Saturdays off is to
Sabbatarians, but rather how burdensome the loss of a day for the
assignment would be.

	Eugene

 
> 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.