Snowbowl decision

[Berg, Thomas C.]

Mockaitis was the priest, who sued to have the tape suppressed and further eavesdropping of confessionals in the jail stopped.  Wasn't his exercise of religion -- his ability to administer a Catholic sacrament with its essential feature of confidentiality -- substantially burdened even with no threatened sanctions against him?

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Thomas C. Berg
St. Ives Professor of Law and Associate Dean for Academc Affairs
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
E-mail: tcberg at stthomas.edu<mailto:tcberg at stthomas.edu>
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com<http://www.mirrorofjustice.blogs.com/>
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From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of Steven Jamar [stevenjamar at gmail.com]
Sent: Saturday, June 13, 2009 6:14 PM
To: Law & Religion issues for Law Academics
Subject: Re: Snowbowl decision

Tom,

I understand the points in your brief and think it well done.

My question relates narrowly to any problems there are for Christians.  I can see many more problems for other faiths, including in particular your examples.

I suppose the eavesdropping on the priest/penitent case is Christian, and it burdens the exercise -- but is there not a sanction under the 9th circuit (use of the tape against the penitent)?

Let's consider zoning perhaps.  Is a denial of a variance a sanction? or a denial of a benefit?  Or is it just a regulatory action which does not meet the 9th circuit test under any likely interpretation?  Denial of a permit to build a church could substantially affect religious exercise of the religious community.  Is this not a cognizable claim at all under RLUIPA under any possible reading of the 9th circuit test?

Are there any others?

Steve

On Sat, Jun 13, 2009 at 6:05 PM, Berg, Thomas C. <TCBERG at stthomas.edu<mailto:TCBERG at stthomas.edu>> wrote:
I don't see what child abuse cases have to do with this, other than that Marci likes to bring them up in order to try to discredit free exercise of religion in general.

The Ninth Circuit's standard is that "a 'substantial burden' [under RFRA] is imposed only when individuals are (1) forced to choose between following the tenets of their religion and receiving a governmental benefit ... or (2) coerced to act contrary to their religious beliefs by threat of civil or criminal sanctions."  Our amicus brief, http://www.narf.org/sct/navajonationvusfs/amicus_of_religious_liberty_law_scholars.pdf, lists cases that might be dismissed at the threshold under that language.  They involve varying faiths; we weren't just concerned about Christians.  There are the cases of Hmong or some Jewish families' objections to loved ones' autopsies, which were prime examples given to Congress of why RFRA was needed, but which don't involve the imposition of civil or criminal sanctions on anyone or deny anyone a benefit.  There are also prisoner cases, from multiple faiths, where the prisoners are not sanctioned but simply have their religious materials taken away f!
 rom them or are refused a worship space or a religiously required diet.  (The same restrictive "substantial burden" test could well spread to RLUIPA or to state RFRAs.)  The government also confiscated religious materials (the sacramental tea) in Gonzales v. O Centro; that part of the case involved neither denial of a benefit nor  coercion to act contrary to religious belief.  The Ninth Circuit's test could also mean that government eavesdropping on religious conversations, meetings, or houses of worship creates no burden (entirely apart from whether a strong government interest justifies the burden).  The en banc decision essentially disapproved the circuit's Mocklaitis decision that had held RFRA was triggered by the government's surreptitious recording of a confessional between a prisoner and his priest.  Those are some of the examples that occurred to those of us who joined the brief.

As I said in my earlier post, there are ways to read the Ninth Circuit's language narrowly to avoid these results.  I expect that will happen in some of the situations.  But lawyers and judges ought not to have to parse or manipulate the phrasing in order to cover these cases, which involve substantial real-world inhibitions of religious practice and several of which are core applications of the statute.  (All this in addition, of course, to the effects on Native American practices in the federal-lands case themselves.)

Tom

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Thomas C. Berg
St. Ives Professor of Law and Associate Dean for Academc Affairs
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
E-mail: tcberg at stthomas.edu<mailto:tcberg at stthomas.edu>
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com
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Prof. Steven Jamar
Howard University School of Law
Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc.