A Concrete Example

Tue Jun 23 16:43:04 PDT 2009

Eric asks a good question. I don't know anything about architecture but my guess is that we would conclude that the message communicated by architectural resources is often incidental to the reason we are protecting them (e.g. we protect older examples of the architecture but not more contemporary examples). I think that argument can be made with regard to the expressive content of some religious practices.  If anyone is interested I could offer some examples.
But that argument is much harder to make when courts repeatedly insist that regulations which disfavor some architectural style (or expressive religious activity) constitute prohibited viewpoint discrimination. Given that background, I would think a law that provides preferential protection to such a style would be constitutionally problematic and subject to challenge.
The argument is also much harder to make when the physical manifestation of what is being regulated constitutes a conventional means of expressing ideas, such as a book or a song or an expressive meeting, as opposed to physical manifestations which are not typically understood to be conventionally expressive in nature, such as  a spotted owl or a pond.
Alan Brownstein

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Eric Rassbach
Sent: Tuesday, June 23, 2009 4:01 PM
To: Law & Religion issues for Law Academics; Hamilton02 at aol.com; laycockd at umich.edu
Subject: RE: A Concrete Example

I thought everyone would be interested in Prof. Hamilton's op-ed on Barr and Potter, which seems inspired at least in part by the discussion here:
http://writ.lp.findlaw.com/hamilton/20090623.html
I like Prof. Lund's metaphor because it gets at the point of RFRA, RLUIPA, the state RFRAs, the UDHR, the ICCPR etc.: placing value on the autonomy of the human conscience and the physical manifestations thereof.  Those physical manifestations may sometimes also be expressive, but they also have value completely apart from their expressive or nonexpressive nature.
That's why having a law protecting the manifestations of conscience is not such a strange thing in the land use context.  Through land use laws we protect (and thereby attribute value to) wetlands, endangered species, historic and archaeological resources, and many other goods, often through overriding federal or state level statutes.  Some of these other protected goods also happen to have expressive content (e.g. many historic and architectural resources).  Do we think that the statutes protecting those goods should be invalidated because the government doesn't at the same time protect all analogous forms of expression?
Eric

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Christopher Lund
Sent: Tuesday, June 23, 2009 12:32 PM
To: Hamilton02 at aol.com; laycockd at umich.edu
Cc: religionlaw at lists.ucla.edu
Subject: A Concrete Example

I also intended to respond as well, although Doug as usual put it better than I would have.

Here's a cute example I thought of when reading the case.  Maybe it even relates to what we're talking about.  I like scuba diving, and had been pressuring my wife to go.  She had various fears: fears that the oxygen supply would run out, fear of the bends - and fear that the seal on the mask would fail 50 feet down (that's the factual connection to Potter and why I thought of it).

I tried to convince her that her fears were totally unreasonable, that the risk of a scuba diving accident was zero.  It didn't work.  She knew it wasn't true; it couldn't be true.  And I realized the problem was not that she was overestimating the risk.  The problem was that she thought the value of a scuba dive was zero.  And if you think the value of a scuba dive is zero, then a one-in-a-billion chance of a scuba accident would make the whole thing not worth it.

I think my wife's mindset toward scuba is similar to the mindset of some toward religious liberty.  If I entirely don't get Islam and am unwilling to try, maybe I won't really appreciate the harm to Muslim firefighters in having to be clean-shaven.  Implicitly at least, I'll put a zero value on it, and then any chance of a horrific consequence will be enough to outweigh the religious claim.  There may be a one-in-a-thousand chance that beards affect the wearing of the mask at all, and a one-in-a-million chance that any such effect would cause injury.  I still would bar the claim - and it really doesn't matter what the numbers are, as long as they are nonzero or there's a nonzero probability of them being nonzero.  And that's not discriminatory animus; that's not even irrational, given its premises.  But it is indeed premised on the assumption, tacit and thus unobservable in the federal reporters, that religious liberty has no value.  I think RFRA was meant to disrupt that assumption, and rightly so in my opinion.

Best,
Chris

P.S.  This should be obvious from my post, but I am not trying to equate the value of scuba diving with the value of religious liberty.

______________________
Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

>>> laycockd at umich.edu 6/22/2009 11:14 PM >>>

Pretext suggests they did it out of hostility to Islam, or to religion.  Maybe so.  Far more likely, they made a judgment in which they placed zero value on religous liberty, and focused only on whatever safety risk there was, however small or remote.  Facts matter, as Marci said, and the dominant fact here is 20 years of experience with no one hurt.  If any one had ever been hurt, that would have been the city's exhibit A.

Quoting Hamilton02 at aol.com:

>
> Art--  We may only be talking to each other at this point, but the  facts
> matter in these cases.  So why do you think DC moved to an  across-the-board
> rule regarding beards and why does the rule appear in fire  companies across
> the country?  If it was all a pretext, why not just give  up and let
> everyone wear a beard?
>
>
> In a message dated 6/22/2009 9:03:23 P.M. Eastern Daylight Time,
> ArtSpitzer at aol.com writes:
>
> In a message dated 6/22/09 1:31:13 PM, Hamilton02  writes:
>
>
>
> I have to ask Art one question--  It seems quite  clear from the record
> that there really is a danger to those with facial  hair in responding to
> emergencies....
>
>
>
> Those not interested in the minutiae  of the case can press delete now.
> I've pasted below a short (500 word)  excerpt on safety from my opposition to
> the Fire Department's petition for  rehearing.  The petition was denied.
>
> Art
>
> III.     This Case Does Not Present a  Serious Issue of Public Safety.
>
> The District  urges the Court to apply a ?particularly strong? preference
> for resolving this  case on the merits, because ?public safety is at issue.?
>   Pet. at  8.  But the district court's judgment poses no threat to public
> safety.
> The D.C. Fire Department, as a matter of  official policy, allowed hundreds
> of firefighters to  wear beards from sometime before 1973 until mid-2005.
> [Citation.] While  initially limited to men with a skin condition, from 1994
> until 2005  all employees were permitted to wear  beards, and many did.
> [Citation omitted.] It is uncontradicted that these  thousands of
> man-years of
> bearded firefighting did not result in a single  safety problem. [Citation.]
> At the very outset of  this litigation, the retired Chief of Safety of the
> F.D.N.Y. explained in  detail why facial hair does not undermine the safety
> of an SCBA  [Self-Contained Breathing Apparatus].  [Citation.]  Faced with
> that  compelling evidence, the Fire Department did not appeal the preliminary
>  injunction issued at that time, and made no effort to pursue the
> litigation in  the district court for four years, during which time
> all firefighters
> remained free to wear  beards. [Footnote omitted.] That changed in 2005,
> when the district court grew  tired of having this case sit dormant on its
> docket and ordered the Fire  Department to file within 15 days ?a plain
> statement of what its official  policy is with respect to facial
> hair.? R. Doc. 60.
> Seventeen days later  the Department announced the new policy that is at
> issue in this case. R. Doc.  61.
> When called before the district court to  justify the new rule, the Fire
> Department represented--at length and  unambiguously--that its safety concern
> was limited to the use of  negative-pressure respirators in circumstances
> not requiring the greater  protection of SCBAs.  [Citation.]  The Department
> explained that  ?what we're worried about is a situation where you have to go
> into a  contaminated area for an extended period of time,? and an SCBA
> would not be  suitable because ?once the air runs out, that's it,? while ?
> negative pressure  masks . . . will allow them to work.  They can
> work the eight
> hours.  [Citation.]  That explanation never changed until after summary
> judgment  had been entered.
> The district court rejected the  District's argument on the ground that it
> had not adduced credible evidence  that in such a situation ?bearded
> firefighters  . . . could not be  redeployed either 'up' to areas of
> duty where
> SCBA use is required, or 'down'  to cold zones where no respiratory
> protection
> is needed.?  Mem. Op. at  19.  The District did not contest that ruling on
> appeal.
> The record here should therefore leave the  Court entirely comfortable that
> its affirmance of the district court's  judgment creates no danger to the
> public safety of the District of  Columbia.  The handful of bearded
> firefighters and paramedics protected  by the permanent injunction in
> this case can
> hardly be cause for alarm in  light of the undisputed fact that the D.C. Fire
> Department protected the city  for more than 30 years with hundreds of
> bearded firefighters, without a single  beard-related safety incident.
>
>
>
>
>
>
>
>
> **************An Excellent Credit Score is 750. See Yours in Just 2 Easy
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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
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