Religious freedom and 42 USC 666

Fri Aug 1 08:42:07 PDT 2008

    Perhaps Doug, Dan, and others are right that the case is enough like
Bowen v. Roy to be disposed of by that precedent.  But it seems to there
is a specific religious exercise being burdened, in the sense of a
specific religious prohibition that Sherrod doesn't want to violate:  He
thinks it's wrong for him to comply with orders issued under the
Beast-numbered section, just as Thomas thought it was wrong for him to
work on producing munitions, or Sherbert thought it was wrong for her to
work on Saturdays.  It's true that this is interference with a negative
command (don't participate in Beast-authorized things) and not a
positive command (do perform this particular ritual), but that
distinction has rightly never made a difference in religious
accommodation cases.  Or am I missing something here?
 
    Eugene


________________________________

	From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Eric Rassbach
	Sent: Friday, August 01, 2008 8:19 AM
	To: Law & Religion issues for Law Academics
	Subject: RE: Religious freedom and 42 USC 666
	
	
	Might it not be helpful in this context to look first at what
the specific religious exercise is that is being burdened?  That has the
virtue of focusing the court's analysis while avoiding the vice of a
forbidden centrality analysis.  See Greene v. Solano County Jail, 513
F.3d 982, 988 (9th Cir. 2008).

	 
	In Sherrod's case, I don't see any specific religious exercise
that he can claim is being burdened.  In the Lyng-like Navajo Nation
case currently before the Ninth Circuit en banc, by contrast, I think
the Navajo have a stronger claim than Sherrod does, since they have
described specific religious exercises that are burdened by the
government's action in allowing reclaimed sewage to be sprayed on
mountains where they conduct religious ceremonies. 

	 
	Re Tom's question earlier, if San Francisco passed a law (rather
than a resolution) saying "Santeria is a false religion" then I think
the 9th Circuit said in AFA v SF that it might have decided it the other
way.  And under Lukumi it seems fairly clear that any such law would
give rise to a colorable Free Exercise claim based on intentional
discrimination.

	 
	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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