Snowbowl decision

Sun Jun 14 11:01:52 PDT 2009

Yes, it would seem so.  Thanks.

But still, it seems that this still involves another person -- one who  
could very much face sanctions for exercising the right -- the  
penitent.  And so it seems that even in this case one could shoehorn  
it into the 9th Circuit test as written -- although it would  
admittedly also require a third party standing decision for the priest  
to assert the penitent's rights -- but don't they do that all the  
time?  Isn't that inherent in the nature of the evidentiary privilege?

To be clear about my position -- I think the majority in the 9th  
Circuit is wrong as a matter of policy and is being more than a little  
facile with the precedent (like the Supreme Court was in Smith --  
whatever the merits of the decision and rule announced in that case)  
and is really quite at odds with Congressional intent in RFRA and  
RLUIPA, howsoever inartfully expressed.

And I think that it is easier to find substantial burdens in religions  
other than Christianity here, especially earth-based ones.  And I  
think the 9th Circuit case is very likely to be limited in the future  
given the unusual factual setting of it.  But, the circuit did write  
broadly and seems to be signaling an intention that this be the test  
for all settings.  And I find that troubling.  I would much prefer a  
lower threshold or at least one that recognizes harm other than  
withholding of government benefits or imposing governmental sanction  
and then decide the case on the compelling interest/least restrictive  
alternative side.  "Substantial" can mean a range of things, and seems  
to have no logical connection to governmental largess or sanctions.

Nonetheless, I don't think the 9th Circuit approach is likely to work  
much mischief in the area and does seem in keeping with the spirit of  
Smith.  (I realize, of course, that RFRA was an attempt to roll back  
the "spirit" of Smith and so following the Smith spirit instead of the  
RFRA spirit seems wrong on several levels.)

Steve

On Jun 14, 2009, at 12:39 PM, Berg, Thomas C. wrote:

> 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?
>
> -----------------------------------------
> 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/ 
> >
> ----------------------------------------------------------------------------
> ________________________________
> 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
>
> -----------------------------------------
> 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
> ----------------------------------------------------------------------------
>
> --
> Prof. Steven Jamar
> Howard University School of Law
> Associate Director, Institute of Intellectual Property and Social  
> Justice (IIPSJ) Inc.
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-- 
Prof. Steven D. Jamar                     vox:  202-806-8017
Associate Director, Institute of Intellectual Property and Social  
Justice http://iipsj.org
Howard University School of Law           fax:  202-806-8567
http://iipsj.com/SDJ/

"Education:  the path from cocky ignorance to miserable uncertainty."

Mark Twain

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