Religious freedom and 42 USC 666

[Douglas Laycock]

I think this case falls within NW Indian Cemetery v. Lying and Bowen v. Roy.  I don't know how many of us there are, but I am one of the strong supporters of regulatory exemptions for free exercise who thinks that those cases make sense. 

Dad's asserted belief here is not not -- at least not in the first instance -- about his own behavior; it is about the government's behavior.  He doesn't even have to put 666 on his check, or his paperwork.  His objection is to what number the government can put on its statute.  He may be sincere, and he may think he really can't pay for as long as that number remains in any way relevant to his payment.  But he can't have a right to control the government's behavior, because such a right is impossible to implement in a regime of equal religious liberty.  What if he won't pay if the statute is numbered 666, and I won't pay if it's numbered 667? 

Well, there are an infinite number of numbers, and only a finite population to object to them, so this is not the strongest example.  But it is easy to imagine other examples with only two possibilities, mutually inconsistent.  Pat Robertson believes God will punish the nation if it permits abortion.  That doesn't mean he can control everyone else's abortion behavior for fear that he personally will be caught up in the punishment.  And if there is one other citizen, with an intense religious commitment to women's control of their own bodies, who believes that God will punish the nation if it /restricts/ abortion, then what happens to the free exercise claims? 

We each get to exercise our own religion.  And government should not regulate, penalize, or discriminate against that (or reward or discriminate in favor of that) without strong reason.  But we do not each get to insist that government or our fellow citizens exercise our religion along with us, or even do much to help.  Government's principle obligation, and often it's only obligation, is to stay out of the way. 

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

>         Well, I suppose that's part of the question with any
> accommodation:  When the government goes out of its way to accommodate
> people's religious objections -- by rearranging things to prevent
> coercive burdens on the people's religious beliefs -- is it therefore
> improperly endorsing the religion?  Generally the answer seems to be no,
> see, e.g., Corporation of Presiding Bishop v. Amos, at least unless the
> action imposes a substantial burden on individual third parties (see,
> e.g., Estate of Thornton v. Caldor).
>
>         What do others think?  Would renumbering the section, or
> enacting a new section that mirrors the old, violate the Establishment
> Clause?  (Would skipping the 13th floor, or offices numbered 666, in
> government-owned buildings?)  Even if it wouldn't, would refusing to do
> so violate RFRA / Sherbert regimes?
>
>         Eugene
>
>> -----Original Message-----
>> From: religionlaw-bounces at lists.ucla.edu
>> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Jean Dudley
>> Sent: Thursday, July 31, 2008 3:24 PM
>> To: Law & Religion issues for Law Academics
>> Subject: Re: Religious freedom and 42 USC 666
>>
>> Another thought occurs to me;  If the law were to be
>> renumbered, that would constitute an endorsement of religion.
>>  The angle here is to present the law as simply sequential
>> according to the rules of mathematics, in order to avoid an
>> establishment of religion.  Do they skip the number 13 in the
>> federal statutes?
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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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