Accommodation and fairness to others

[Douglas Laycock]

	The fear of overaccommodating raises a legitimate factual issue;
I am inclined to think, without claiming that the case is easy or clear,
that if we believe the Sabbatarian when he says he will do no work on
the Sabbath, giving him the extra day comes closest to treating him
fairly with the student whom we believe when he says he was sick for a
day.  The extension for illness at a critical time is one of those
routine exceptions that we in fact give quite often as a percentage of
all the cases in which the issue arises; it helps put in perspective all
the angst about religious exceptions.

	The homicide hypotheticals are difficult and I have not thought
about them much.  My initial reaction is that we do not have to give a
necessity defense when the necessity is based on a belief the government
can not accept (or reject).  I am assuming the necessity defense is an
objective standard. If the necessity defense is principally subjective
-- the defendant reasonably believed it was necessary -- then we cannot
reject all religious beliefs as a prior unreasonable for this purpose.  

	On provocation, I suspect that provocation defenses are
problematic, and rarely successful, and that that reality is doing much
of the work in our reaction that a religious provocation defense is also
problematic.  But assuming provocation sometimes reduces homicide to
manslaughter, this is a body of law that says some killings are more
understandable than others, and once we say that, the case for treating
religious provocations the same way is quite strong.  On the other hand,
some of the religious provocations have a religious liberty interest on
the other side.  If it is extenuating that I killed you for apostasy,
you have less freedom to change your religious belief.  


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 Volokh, Eugene
Sent: Monday, March 27, 2006 4:52 PM
To: Law & Religion issues for Law Academics
Subject: RE: Accommodation and fairness to others

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?