Snowbowl decision

Sun Jun 14 23:55:14 PDT 2009

It is an interesting question. I wonder if the difference in standards might affect a Mozert type case. Imagine a group of, say,  Evangelicals whose participation in a government program requires them to listen to ostensibly secular messages that offend their religious sensibilities or that they believe is harmful to their spiritual well being. It isn't that they are prohibited from hearing these messages but they have a strong religiously based preference not to do so. Like the Mozert plaintiffs, they want an exemption.

You could argue that they have been forced to choose between following the tenets of their religion or receiving a government benefit, but my hypothetical assumes that they would not be forbidden to participate and it seems possible, given the court's dismissal of spiritual injury, that it would refuse to see their religious tenets as at issue much as the Mozert court did.

Of course, its not clear that they would fare much better under the other standards and it may be unlikely that RFRA or RLUIPA would ever help plaintiffs in Mozert-type claims for much the same reason that prompted the 9th Circuit to adopt a narrow standard, i.e., to avoid potentially unlimited claims to be excepted from a variety of legal requirements.

Professor Rick Esenberg
Marquette University Law School
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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: Sunday, June 14, 2009 1:01 PM
To: Law & Religion issues for Law Academics
Subject: Re: Snowbowl decision

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/>
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From: religionlaw-bounces at lists.ucla.edu<mailto:religionlaw-bounces at lists.ucla.edu> [religionlaw-bounces at lists.ucla.edu<mailto:religionlaw-bounces at lists.ucla.edu>] On Behalf Of Steven Jamar [stevenjamar at gmail.com<mailto: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
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Prof. Steven Jamar
Howard University School of Law
Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc.
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