Religious freedom and 42 USC 666

[Berg, Thomas C.]

Eugene, I think one can cut the cases the way you did; but one can also cut them the way I and Doug suggested.  To satisfy the Roys' objection to providing the social security number, the government would have had to let them do something different (not provide the number).  To satisfy Sherrod's objection, all the government has to do is renumber the statute; then it can require him to do exactly the same thing (pay the money).  In that sense, Sherrod's objection is not to what he's being required to do, but to how the government has acted in its own operations (how it numbers a statute).  I think that this characterization, bringing the case within Roy, is preferable because it explains the intuition that the government should win without resting on the problematic rationales that (a) the government must/can show a compelling interest/ least restrictive means in this instance -- i.e. it would be really hard to renumber this statute -- or (b) the claim is insincere or a mistaken scriptural interpretation.  Doesn't this eliminate the seeming puzzle in the case without creating any problems?
 
My point overlaps with Doug's -- a regime allowing free exercise objections to what the government calls its laws is not manageable -- but it's narrower.  I think that Nothwest Indian v. Lyng can be seen as the government doing something to the Native Americans, and not just as acting in its own sphere.
 
Tom Berg
University of St. Thomas School of Law (Minneapolis)
 

________________________________

From: religionlaw-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Thu 7/31/2008 5:57 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious freedom and 42 USC 666



        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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