Religious freedom and 42 USC 666

[Conkle, Daniel O.]

As Eugene suggests, I think the burden, in reality, is indeed no different than in other contexts.  What's different is the unmanageability of such claims, so it's something of a legal fiction to say that there is no burden.  Better, perhaps, to say that there is no *constitutionally cognizable* burden, which is language the Supreme Court itself has used, if I'm not mistaken.

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 11:42 AM
To: Law & Religion issues for Law Academics
Subject: RE: Religious freedom and 42 USC 666

    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
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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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