Religious freedom and 42 USC 666

[Conkle, Daniel O.]

Actually, I think the same combined elements were present in Bowen, even with the social security number already in the government's hands - the claimant objected to participating in the program by applying for and receiving benefits that would, in his view, rob the child's soul because the government would be using a social security number and not her name.  So, in effect, he was  objecting to what was being demanded of him - applying for at least receiving benefits, cashing checks, using the money, etc. - in light of what the government was doing internally.  Right?

That said, I think Doug's explanation of the internal operations cases is quite cogent.

Dan Conkle
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Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail conkle at indiana.edu
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________________________________
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, August 01, 2008 10:59 AM
To: Law & Religion issues for Law Academics
Subject: RE: Religious freedom and 42 USC 666

    Doug:  I much appreciate your responses, and you may well be right.  But I'm just not quite sure about the distinction between an objection "to any behavior demanded of him" and an objection "to the government's behavior."  As I understand it, his objection is to both, or rather to the latter through the former.  He says, "I object to your demanding that I go along with these things that are pursuant to 42 USC 666."  He's not just saying that there's something wrong with the government's keeping records on him in room 666; he's saying that he refuses to go along with what the government demands of him, because the demand is made under 42 USC 666.  Indeed, in the process he's objecting to the government's behavior, but the root of it is precisely the objection to what's demanded of him -- something that wasn't the case in what remained of Bowen, or for that matter in Lyng.

    Eugene
________________________________
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Thursday, July 31, 2008 7:51 PM
To: religionlaw at lists.ucla.edu
Subject: RE: Religious freedom and 42 USC 666


I understand that difference. It shows that the line is not perfectly clean.  few lines are.

But fundamentally, this guy's religious objection is not to any behavior demanded of him.  It is to the government's behavior.  He says, "I'll pay my child support if you the government renumber your statutes."  It is the government's behavior that has to change to put him in compliance with his alleged religious beliefs, not his own behavior.  Government wants him to pay $X to his wife, and he says he is perfectly willing to pay $X to his wife.  But first, the government has to do something that he says is required by his religion.

That is the essence of Lyng and Bowen.  He is not trying to insulate his own behavior from regulation; he is trying to control the government's behavior.



Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:

>         Well, I thought about Bowen v. Roy, but my sense is that the
> "internal procedures" point there was that the Roys weren't required to
> actually do anything that violated their religious beliefs (the
> government had stopped demanding that they provide Roy's social security
> number, and five Justices took the view that the government indeed had a
> constitutional obligation to so stop).  The Roys just thought that the
> government's practice of giving Roy a number was spiritually harmful.
>
>         Here, the claimant seems to be arguing not that it's bad for the
> government to have a section 666 in its statutes, but that it violates
> his religion to comply with orders issued under that section.
> Presumably, if the government copied or moved this to section 777, then
> he'd be OK with complying, not because the government changed its
> internal procedures, but because the action that he would be required to
> do would no longer be pursuant to a statute numbered with the number of
> the beast.  So that seems different from Bowen v. Roy, no?
>
>         Eugene
>
> Tom Berg writes:
>
>> To the extent that he objects to paying the support even if
>> the provision is renumbered, because the requirement is of
>> the antichrist and the 666 simply evidences that, then I
>> assume most courts would hold there's a burden but it's
>> overcome by a compelling interest.  To the extent he says his
>> objection would be cured by renumbering the provision, then
>> doesn't this seem like Bowen v. Roy -- and therefore not a
>> cognizable burden -- in that the numbering of a statute is a
>> matter of the government's internal procedures like the
>> assignment of a social security number in Roy?  If
>> renumbering the provision would meet the objection, then the
>> objection seems separable from the payment requirement itself
>> and thus (arguably) concerns an internal government matter.
>> It's not clear how much the Roy principle applies to RFRAs,
>> but this might be the explanation for rejecting his claim
>> that fits best into the previous law.
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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
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