compelling interest test : RLUIPA v. Turner

[Paul Diamond]

I would be very interested to know the meaning of 'compelling interest' and 'substantive burden'; 

In Europe, the approach to fundamental rights is that the right would be vitiated if a private employer could avoid accommodation by pleading 'de minimus cost' and the courts engage in a balancing act between the employer/employee interest.  In Disability Discrimination, the accommodation required can be substantial.

Mind you in Copsey v United Kingdom 2008, the European Court held that the dismissal of a Christian for refusing to work a Sabbath day did not engage fundamental rights per se without the need for finding a 'compelling interest'.

Paul
  ----- Original Message ----- 
  From: Mark Sabel 
  To: 'Law & Religion issues for Law Academics' 
  Sent: Thursday, April 10, 2008 10:53 PM
  Subject: compelling interest test : RLUIPA v. Turner


  I think this has been the topic of list discussion before, but I am trying unsuccessfully to figure out exactly what a compelling interest is for purposes of distinguishing between the RFRA/RLUIPA standard and the Turner/O'Lone First Amendment standard.

   

  It's been said that cost and administrative convenience are not compelling interests, a holding which has been attributed to Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974), which sort of says the first and doesn't quite say the second.  There are a number of cases at this point - under RFRA/RLUIPA and otherwise - that find cost or administrative issues to be compelling, or acknowledge that they could be.  Most of the cases that I've seen so far that reject or question the government's case under a compelling interest standard actually go off on whether the compelling interest was actually at risk, or whether there was a less restrictive alternative that might do less damage to it.

   

  So does anyone have citations that actually zero in on what is and isn't compelling for these purposes?  At this point, with respect to cost, the strongest thing I have found is the language of RLUIPA itself, which says generally that government can be required to spend money, which is at least more favorable than the Turner/O'Lone "de minimis cost" catchphrase.

   

  There are a few law review articles on this subject, but they apparently tend to emphasize theory and method.

   

   

  Thank you,

   

   

  Mark Sabel  

   



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