Religious freedom and 42 USC 666

Volokh, Eugene VOLOKH at
Fri Aug 1 10:18:49 PDT 2008

    I appreciate the concerns about the manageability of such claims,
but I wonder exactly what we mean by "unmanageability."  Most granted
exemption requests generally require considerable changes to government
procedures -- the government may have to set up hearing mechanisms,
alternative surveillance and investigation mechanisms that are needed to
serve its interests (consider some of the proposed alternatives in the
peyote case, aimed at making sure the peyote is indeed used responsibly,
children can't get access to it, and the like), schemes for informing
employees about what the rules are, devices for making sure that the
rules are applied fairly, and so on.  Here, by comparison, the change is
high-level (it requires a Congressional act) but otherwise relatively
cheap:  Copy 42 USC 666 to 42 USC 777.
    Or is the concern one about management of subsequent claims by
others who have other objections?  That concern, after all, arises often
with regard to traditional exemption requests, too.


	From: religionlaw-bounces at
[mailto:religionlaw-bounces at] On Behalf Of Conkle, Daniel
	Sent: Friday, August 01, 2008 8:57 AM
	To: 'Law & Religion issues for Law Academics'
	Subject: RE: Religious freedom and 42 USC 666
	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 
	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 



	From: religionlaw-bounces at
[mailto:religionlaw-bounces at] 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?


		From: religionlaw-bounces at
[mailto:religionlaw-bounces at] 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




		From: religionlaw-bounces at
[mailto:religionlaw-bounces at] 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.




			From: religionlaw-bounces at
[mailto:religionlaw-bounces at] On Behalf Of Douglas Laycock
			Sent: Thursday, July 31, 2008 7:51 PM
			To: religionlaw at
			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>:
			>         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

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