Religious freedom and 42 USC 666

[Berg, Thomas C.]

Alan, I take your point, but would the objection to a statement and its symbolic effect be based on non-establishment rather than free exercise?  A non-establishment argument seems quite plausible in your hypo where the statement, X is a "false faith," is a facially religious assertion, but is it plausible if the criticism is just of a group's temporal activities?  When the San Francisco board of supervisors adopted the resolution condemning groups that oppose homosexuality and the groups sued to challenge the resolution, did they state a free exercise as well as a non-establishment claim?  Nearly all of the court's serious discussion was on the Establishment Clause.  See American Family Assn. v. San Francisco, 277 F.3d 1114 (9th Cir. 2002).
 
Tom

________________________________

From: religionlaw-bounces at lists.ucla.edu on behalf of Brownstein, Alan
Sent: Fri 8/1/2008 12:34 AM
To: Law & Religion issues for Law Academics
Subject: RE: Religious freedom and 42 USC 666



Tom, I tend to agree with you and Doug, but I think your description of Bowen v. Row is broader than the the way I would characterize it -- although the difference may be hair splitting. I think the idea behind Bowen v Roy isn't that a litigant can't challenge how the government has acted in its own operations, but that a litigant can't challenge how the government has acted in its own operations to avoid a kind of spiritual harm that has no real or secular world ramifications. I'm not certain that we can never challenge what the government calls its own laws. If the government used language in a law that stigmatized a particular religion -- an exemption or accommodation made available for members of "false faiths" (who use peyote in religious ceremonies or observe Saturday as the Sabbath) -- we might insist that the government change the language it uses to describe the accommodation because of the symbolic or status harm that it causes. But the alleged harm that results fr!
 om being indirectly associated with the mark of the beast is different.

I think that the government is acting in its own sphere in Lyng, but it is also doing something to the Native Americans' ability to practice their faith that has a tangible, secular dimension to it -- and that distinguishes it from, and makes it  a more difficult case than, Bowen v. Roy where the harm can only be understood in spiritual terms.

Alan Brownstein
UC Davis School of Law

________________________________________
From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of Berg, Thomas C. [TCBERG at stthomas.edu]
Sent: Thursday, July 31, 2008 7:55 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious freedom and 42 USC 666

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 mist!
 aken 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)


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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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