Substantial Burden Test?

Suppose that someone chooses to pay a substantial fine rather than comply. In this case, we would infer that the cost of compliance would have been substantial as well (or else they would have chosen to comply). Thus, the two burdens – of complying and of paying a fine – are not unrelated. Of course, in practice we may think that most people would, in reality, comply, or that willingness to pay a fine is not the proper measure of a substantial burden under RFRA.

From what I understand of the case, I’m surprised the Litte Sisters of the Poor even have standing. Their health care plan falls under ERISA and, as a church-run ERISA plan, is exempt from the ACA. If they win, their employees don’t get contraception coverage, and if they lose, their employees don’t get contraception coverage. I’m aware that there are other plaintiffs, but it’s a bit odd that they’re part of the suit, and even odder that they’re the most forward parties to the suit.

It is the business model of the Little Sisters of the Poor to have plenty of the poor to minister unto. Contraception would tend to reduce the number of the poor, therefore undermining their mission. Thus they have standing in any case involving contraception.

This is a fair point. Religious organizations (and closely-held private companies) should sue to avoid the minimum wage standard. After all, paying employees facilitates the sins of employees, and the Little Sisters should be able to limit how much they facilitate that sin, without government interference.

It’s a mess and we should all acknowledge this – the degree of heterogeneity in values combined with the degree of intrusive, universal regulation, creates an impossible situation. Freedoms of speech – even thought, practice of religion, assembly, are all crushed beneath the weight of ideological outrage codified into regulatory activity.

Does the state impose a substantial burden on me when it asks me not to murder people? By your method, I can prove that it does so, by my willingness to murder people and pay whatever substantial penalties the state imposes.

Well, a number of murderers don’t intend to pay the penalty, because they think there’s a good chance they won’t be caught and convicted. If someone commits murder knowing that they’re going to be caught and punished (say it’s in front of a police officer, absent any “heat of passion”), then yes, I think one could infer that that person had a sufficiently compelling reason to commit the murder that the prohibition on it could be said to impose a substantial burden.

That, of course, doesn’t mean that they should be exempt from the murder laws, and indeed, that’s why RFRA doesn’t grant a religious exemption to everyone whose religious practice is substantially burdened by the law. That’s just one of the things you have to show to get a religious exemption.

The language at this link http://www.scotusblog.com/case-files/cases/little-sisters-of-the-poor-home-for-the-aged-v-burwell/ shows why the Little Sisters might have a case: filling out the form is framed as fulfilling an alternate method of complying with the coverage mandate, and the purpose of the law is to provide contraceptive coverage therefore complying is participating in providing coverage. So maybe this doesn’t bring in broader issues of complicity in state actions, or in participating in the state’s desire to ensure fair treatment to everybody regardless of whether their beliefs are the same as their employers. It goes, back, though, to whether all the parts of the law have the same purpose, even the “alternatives,” and arguably the “penalties”. Interesting.

If they can’t (or won’t) provide a plausible argument as to why filling out a form is an equal burden to providing coverage, they’re essentially arguing that “complying with the statute” is inherently a substantial burden, regardless of which part of the statute. (Does the burden, legally, have to be a spiritual one? I don’t think so, otherwise it would be okay to “tax” some religions at high rates, which would essentially be a fine.) I take it that’s why the summary is worded as it is. The nitty-gritty, particularistically detailed argument about why the form is a (spiritual) burden were left out, by their choice. If it were there, I agree, in that case we’d have to talk about why filling out a form isn’t a spiritual burden (except under unacceptably broad theories that we can’t expect everyone to agree to), and also the question about whether the fine itself is a burden probably wouldn’t arise.

However, the summary seems still to be surprisingly broad in suggesting religious people figure out what “act” by others is burdening them, and what other sub-parts that one “act” might have, that they also have to reject in practice.

The law does not, actually, have to provide that all religious practice is unburdened. As I think someone state above, there are a number of tests. Compulsory education, at the risk of having your kids being taken away, can be accommodated for religious reasons, but only within limits. Losing your kids is a “substantial burden,” but that term should apply, ISTM, only to whether teaching them math is. You can’t necessarily say your religion prohibits basic education and expect the state to say OK. So the question should really be, as NPR says, whether filling out the form is burdensome in a way not outweighed by state interests.

@23
Obviously there can be limits to religious freedom, the question is if this is one of them.

Its not the filling out of a form that is a burden. Its having to continually assert that you have the right to do something that you already have the right to do.

Would gay and lesbian couples have been satisfied with being granted the right to marry by filing a waiver from the Defense of Marriage act? Of course not – they have a right to marry and shouldn’t have to re-assert it every year to have it recognized.

“Its having to continually assert that you have the right to do something that you already have the right to do.”

In practice, it’s filling out a form. The state recognized the religious objection, established an exception, and a provided a mechanism for invoking it. If that mechanism – filling out a form – is a substantial burden, what would not be a substantial burden?

Churches are similarly exempt from taxation. To invoke that exemption, they must file a form, I believe, and do so every year. Is that a substantial burden on the free exercise of their religion?

“Would gay and lesbian couples have been satisfied with being granted the right to marry by filing a waiver from the Defense of Marriage act?”

The issue here is the absence of a compelling public good for DOMA, against which burdens can be weighed. Any burden is an undue burden when weighed against a law which infringes personal freedom for no defensible public purpose.

@ Trader Joe, here is the entire text of the 16th amendment:

“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”

Note that it doesn’t mention religions or religious exemptions at all. It does not mandate an exemption process. There is no constitutional requirement that religions file forms in able to maintain their exemption. That requirement is a consequence of legislation. Does the requirement to file a form create a substantial burden, and is it therefore an infringement of their religious freedom?

“What analogous legitimate interest might be asserted as served by collecting a file-drawer of waivers from the DOMA? (What thing that the state has an interest in doing could not so easily be done any other way than by collecting stacks of these waivers?)”

See JH…now you sound exactly like a Little Sister.

What legitimate interest might be asserted by collecting a file drawer of waivers from the religious exemption provision of the ACA?

“What legitimate interest might be asserted by collecting a file drawer of waivers from the religious exemption provision of the ACA?”

The provision of more comprehensive health care insurance to more people. Now your turn.

“The provision of more comprehensive health care insurance to more people. Now your turn.”

That end point remains the case whether the form is completed or not. The only way non-compliance aids the goverment initiative is if the purpose is to fine non-compliance, in which case – it is in fact a burden, as asserted by the jurists in the case.

It also seems to involve a very broad understanding of what kinds of actions make a person complicit in sin …

Since the plaintiffs are claiming a religious exemption, perhaps this argument could be presented in court? Attack their sincerity in terms of their professed beliefs. Question of standing again.

I can’t really grasp why several posters want to conflate this case with the Texas abortion clinic restrictions case. If the Texas law contained a provision which allowed any clinic to be exempt from the law by simply filing a 2-page form every year, there would be no case. No clinic or patient would claim that was an undue burden.

“I tend to think the state’s claim to regulate conditions where medical procedures are done is a little bit stronger…”

…even when the state admits there is no need for the regulation, and points to no benefit from the regulated requirements, and offers no explanation for why one kind of clinic was singled out for special regulation while others were not. Do try to keep up, Brett.

Layman @ 32:

Unlike other non-profits, churches do not have to file an annual information form with the IRS.

heckblazer- Are you arguing that this case should come out differently if the form only had to be filed once, like the forms for IRS recognition as a church? Are you arguing that the undue burden is all the paperwork of filing the form repeatedly as time goes on? If not, then who cares.

For what its worth, the reason the IRS only requires you to file for recognition as a church one time is because churches generally remain churches… whereas employees come and go. Not that this matters, because this issue is a complete red herring and everyone knows it, but that’s the reasoning behind it.

You asked, “The substantial burden test only concerns the burden if you comply, not if you violate. How not?” A legal encyclopedia digesting a 2013 case out of E.D.N.Y.: “Where government action coerces a religious adherent to undertake affirmative acts contrary to his religious beliefs, the substantial burden inquiry under RFRA should focus primarily on the intensity of the coercion applied by the government to act.” The same encyclopedia cites a 2008 California case (which cites to the SCOTUS holdings) to support the following: “Thus, under the United States Supreme Court’s most recent holdings, a religious objector has no federal constitutional right to an exemption from a neutral and valid law of general applicability on the ground that compliance with that law is contrary to the objector’s religious beliefs. The law need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.”

Taken together, these principles suggest that 1) the penalty for violation could be taken into account as a measure of the “intensity of the coercion” to act, but also that 2) a merely “incidental effect” of compliance with an act contrary to one’s religious beliefs won’t trigger strict scrutiny. On this last point, the 10th Circuit dissenters appear to be wrong, at least from the point of view of California’s Supreme Court. Essentially, the analysis is what Patrick @49 is saying.

I should mention that in Hobby Lobby the majority relied entirely on the penalty. Addressing substantial burden the Court wrote, “If the Hahns and Greens and their companies do not yield to this demand, the economic consequences will be severe.” Only the dissent noted the incidental effect of compliance with ACA.

It’s both 1 and 2. Setting aside the lingering “incidental effect” issue, which I believe pertains as well to RFRA as to Free Exercise cases–the distinction SamChevre makes points out RFRA’s inclusion of laws of general applicability as potential burdens; they are not so under First Amendment jurisprudence–imagine the penalty were a one-time $1.00 exemption fee. The economic consequences would not then be “severe.” You tried this tack with the fire extinguisher example, but there the government would argue successfully a compelling interest, as you point out, and least-restrictive means, which is not the same as an “incidental effect” or “de minimis burden.” Least-restrictive means asks if there are other reasonable ways to achieve the interest at a reduced burden, not whether the burden is incidental.

So, a couple caveats in conclusion. First, a comment up-thread suggests that RFRA does dispense with the “incidental effect” doctrine imported from Free Exercise jurisprudence. I read otherwise, and if I’m correct, then an incidental effect–having to sign a form, having to “participate,” however remotely, in a process the end result of which you disapprove–drops the suit. Second, as SamChevre notes this is a RFRA case, and RFRA is inapplicable to cities and counties, who impose fire protection laws. Your plaintiff wouldn’t be able to sue the city under RFRA.

Serious copy-and-paste here from a helpful article digesting cases that address these issues:

In Muhammad v City of New York Dep’t of Corrections (1995, SD NY) 904 F Supp 161, the court entered judgment in favor of defendants in an action under the Religious Freedom Restoration Act (RFRA) (42 U.S.C.A. §§ 2000bb et seq.), brought by the plaintiff, a member of the Nation of Islam, who alleged that his free exercise of religion was violated, the court finding that in enacting RFRA, Congress did not intend that courts would no longer extend the deference traditionally accorded prison administrators. In order to establish that plaintiff’s exercise of religion was substantially burdened, the plaintiff must demonstrate that the government’s action pressured the plaintiff to commit an act forbidden by plaintiffi’s religion or prevented plaintiff from engaging in conduct or having a religious experience mandated by plaintiff’s faith. The Court rejected plaintiff’s contention that he had been substantially burdened since the defendant offered numerous religious services and accommodations for Muslim inmates, including generic congregate Muslim prayer services every Friday and religious study groups and permitted inmates to have unlimited personal clergy/counsel visits with any spiritual leader, including Nation of Islam ministers. The plaintiff failed to demonstrate that the generic Muslim service offered by the defendant offended particular practices or beliefs that were mandated by Nation of Islam teachings, despite evidence that the plaintiff’s beliefs differed in many ways from the beliefs associated with orthodox Islam. In fact, the evidence revealed that the plaintiff received Nation of Islam literature during his incarceration, all Muslim inmates were allowed to observe Ramadan, and there was no prohibition on the members observing their unique December fast. The court stated that a dispute between an inmate who was a member of Nation of Islam and a prison chaplain concerning the plaintiff’s election as Muslim inmate representative was an isolated incident and not symptomatic of hostility or suspicion by the defendants toward members of the Nation of Islam.

Plaintiff then argues, “Why a $2000 fine? You could have imposed only $500!” I suspect that at that point deference to Congress and to the agencies who execute the laws kicks in, as it does in some of the cases pertaining to RFRA and prisons. The courts defer to the prison administrators and their expertise.

“So taking the government’s degree of interest in X as a proxy for the degree of spiritual burden imposed by X is not sensible.” Not quite. We take the government’s degree of interest in X (as reflected in the fines) as a measure of the burden felt by the plaintiff. It isn’t a spiritual burden, but an economic one, imposed to coerce the plaintiff to perform X. X is the spiritual burden. RFRA does not deal in spiritual burdens.

Patrick: I thought I was being agnostic as to “substantial” or “incidental.” I’m trying to explain why weighing the penalty for not doing X might be a burden. For example, if doing X in B imposes an “incidental effect” burden-wise on a denizen of B whose beliefs proscribe X, then even if that person might not be able to pay the penalty, s/he will not prevail in court. No need for a finding of “substantial burden.”

“But that isn’t the relevant test, or so I have been arguing. The relevant test ought to be: how much are they burdened if they comply (and don’t have to pay the fine)?” This is not how I read your query, which I take to be: How can the penalty be a legitimate measure of burden? Your rhetorical question, “How not?,” is doing this work. How is it possible that the penalty weighs into the burden? My response–despite my not being a fan of RFRA–is that it reflects the level of coercion imposed to comply.

“RFRA is not like a commodities exchange in which state interests and sins are bartered and traded, back and forth.” Ha ha ha ha ha! Since when? Look again at my plagiarized comment @72.

I regretted writing “RFRA does not deal in spiritual burdens” the second I hit the Send button. What I meant was that RFRA regulates “exercise of religion.” “Exercise” is not per se a spiritual phenomenon, inasmuch as some of my exercise of my religion involves nothing spiritual at all: driving to church, checking out a book of wisdom from a library, donating to a cause, etc. (A regulation of the purely spiritual would be something like an untenable, “All citizens must believe X.”) Any kind of burden can add to the calculation. The whole point of RFRA is to target government action in the form of laws of general applicability, i.e., laws that are not on their face related to religion. The burden might have spiritual effects, but also economic ones. Consider convenience: law Z ends up forcing me to go to midnight services. I can obtain all the spiritual fulfillment I require, but I have to rework my calendar to manage it. Is that substantial?

Haven’t read Laycock, but I think there is a good deal of deference to plaintiffs’ subjective representations of belief. And yet, see comment @72. (No idea how representative this case is.) There must also be empirical demonstrations of one’s own devotion to religious strictures and of a dearth of alternatives for complying with them. The government will challenge whether the system to which a plaintiff claims devotion is even a religion, whether s/he is in fact devoted, whether the system requires specific behaviors, etc.

I once played with the idea of an economic system where the circulating currency represented obligation rather than entitlement and so flowed “backwards”. Push money, rather than pull: the church issuing tokens for sinning — or something — rather than the state claiming taxes, and you provided goods and services in exchange for people accepting tokens from you.

Unreasonsble: for the nuns themselves, assuming they don’t employee regular people, maybe lay sisters who haven’t taken vows (though my knowledge of this is from The Name of the Rose)?

This morning I’m trying another approach to your “simple question,” namely, a review of principles of statutory construction that bear on the relationship of statutory sanctions imposed upon the violation of a mandatory rule. Suffice to say that statutory sanctions are treated as of a piece with the enacted legislation. This suggests that for purposes of determining the burden of compliance with a law the penalty is as relevant as the compliant behavior.

This led me to an article that surveys outcomes in cases quite similar to Little Sisters (the typing of which brings to mind a very good Ry Cooder recording): “Validity, Application, and Construction of Religion-Based Challenges to Health Insurance Contraceptive Coverage Mandated by Patient Protection and Affordable Care Act Preventive Services Requirement, 42 U.S.C.A § 300gg-13(a)(4), and its Regulations.” There I find two sections addressing substantial burden, one enumerating cases where the burden is shown the other where it isn’t. Among the former, a case in which the court held that “the institutions were required to pay a penalty if insurance coverage did not include contraception and sterilization, and the institutions objected on religious grounds because providing coverage would make them complicit in violating their religious tenets, citing to RFRA…” Among the latter, “The court also found that the tax payment penalty for failing to comply with the mandate is ‘too indeterminate, remote, uncertain, and indirect’ to qualify as a substantial burden.”

The answer to the simple legal question, then, is a resounding NO. Substantial fines can contribute to a substantial burden. But your question seeks more than a legal determination. It asks as a matter of logic how the penalty for violation of a law can paradoxically serve to excuse the violation by contributing to a substantial burden on religious exercise that puts the government on the hook to justify its regulation. Framed in this way, the argument isn’t so paradoxical. Without targeting religious actors, government commands X, a law of general applicability, because it has a compelling interest in X and because the least restrictive way to accomplish X is to impose a penalty for failure to do X. That penalty places a substantial burden upon religious actors for whom X is anathema. Nevertheless, the religious actors lose.

I’m wondering if there is a theoretical problem with “substantial burden” and religion, at least in a country such as the United States which doesn’t have a state religion:

We can empirically measure how long it typically takes someone to fill out a government form, and thus can know how burdened someone is by the pure act of having to do some additional paperwork. (i.e not very much; but compare, for example, the Paperwork Reduction Act of 1980).

If it was also empirically verifiable that filling in the form will cause a person to be punished by a vengeful deity (e.g. we can all observe that all the previous fillers in of the form have been chained to a rock by Zeus and are now having their liver pecked out by eagles) we could agree that filling in the form results in a substantial burden because of the consequent divine retribution.

But religious claims typically aren’t empirically verifiable.

And, if I recall correctly (not being a lawyer…) U.S. courts really, really don’t like to rule on religious doctrine. So no U.S. judge is going to say “you’re not substantially burdened because the correct interpretation of Catholic theology is that God won’t punish you for it”

Hence, problem. We have no obvious way of knowing if someone is really burdened by the religious element, or is just trying it on. (There is an economic method of discovering their true preference, of course: impose the penalty and see if they fill in the form or pay the fine).

It’s hard not to conclude that the Sisters and the other plaintiffs are exercising bad faith.

I raised this earlier, but the Sisters have employees, and they pay those employees money. Money is fungible, which means that the employees can use that money to buy contraceptives. If the plaintiffs are to be taken seriously, that they are morally affronted by the requirement to sign a form which could result in an employee using contraceptives, surely they are just as morally affronted by the requirement to sign a paycheck, or hand over bank notes, which could equally have that result.

I suppose you could argue that they can’t guess if their employees will spend their pay that way; but it’s equally true that they can’t guess if those employees will choose to buy contraception coverage.

If they want to refrain from what they see as facilitating sin, perhaps they should not be employers at all? On the other hand, having decided to gamble their immortal souls by providing the means to sin, what possible difference can it make what form those means take?

I haven’t read it yet, but a good place to begin to understand the philosophical underpinnings of law and religion in the U.S. is Brian Leiter’s Why Tolerate Religion? http://www.amazon.com/Why-Tolerate-Religion-Brian-Leiter/dp/0691153612

I think that people are getting a bit too bogged down in Constitutional doctrine here (prettified power, IMO), and missing the real target.
1. Childhood education is compulsory.
2. Public education is funded by taxes.
3. Some people have a quite sincere religious belief that they cannot publicly educate their child. They therefore send them to parochial schools, whose funding amounts to a second education tax imposed solely on these parents.
4. Wingnuts hate government schools.
5. You want to know why wingnuts seems to care so much about “religious rights?” Nothing is constant in wingnuttia but race and taxes.
6. Because of #4, #3 constitutes an “undue burden”, per Alito, Roberts, Thomas, JJ.

Patrick @ 60:
My understanding is that on formation churches don’t have to file anything with the IRS unless they want donations to be tax-deductible. I make no general claims based on this.

John Holbo @ 90:
Would a -$12 bill have infinitely more value than any positively denominated bill? Or does that sort of thing only happen with temperature?

My only observation on the OP is that judges who think signing a piece of paper is a substantial burden on a nun’s freedom of religion likely also to think that a forced ultrasound or having to drive 100+ miles to a clinic is not an undue burden on a woman’s right to get an abortion.

You can’t access the article because it’s behind a very secure paywall. I never intended for anybody to read it.

Let me wrap up dinner and a visit with in-laws and I’ll reply.

Brett Bellmore- You’re being disingenuous. Conservatives regularly go into court and claim that various abortion restrictions are not an undue burden on a woman’s right to get an abortion. The existence of the right is established by precedent and not up for debate. The only question is whether, given the existence of that right, the restrictions in question constitute an undue burden. The conservative litigants and their popular opinion rallying media elites know full well what they are saying when they claim that whatever restrictions are at issue aren’t undue burdens, and you full well know that it isn’t what you’ve written here.

Although I do thank you for the implicit admission that conservatives, as a class, lack even a shred of moral integrity, and regularly and systemically commit perjury. That’s welcome. Its good to get those things out on the table once in a while.

Trader Joe @28

>>Its not the filling out of a form that is a burden. Its having to continually assert that you have the right to do something that you already have the right to do.

The nuns have always had the right not to take contraception. They are not even paying for it because the insurance companies will give it for free – so much cheaper than a pregnancy. All the nuns are asking for is the right to prevent other people from having contraception, their employees.

And then there is the point that birth control pills may be medically indicated for reasons other than contraception. If the nun is having painful, irregular periods, is she going to refuse the pill that will improve her condition? Even if it prevents pregnancy from the sex which she is not having?

“[T]he very existence of a legal right to abort is itself a massive violation of precedent.” That wins today’s award for most almost meaningless sentence ever written, but I think I understand the sentiment that motivates it. What’s disturbing is that a discussion of the implications of the “substantial burden” standard of RFRA manages to veer off into crude politically charged ipse dixit, but I guess that’s Sir Tim Berners-Lee’s World Wide Web for you.

Brett- You are continuing to dissemble. The conservatives arguing that the abortion restrictions under discussion aren’t undue burdens are doing so in the specific context of the legal question of what is or is not an undue burden on the right to have an abortion, and you know this.

There is a (apocryphal?) tale that once upon a time, when the English asked people “are you a Catholic priest,” Catholic priests would assure themselves that it wasn’t lying to answer “no” because they could just mentally interpret the question “are you a [specific] Catholic priest [whom the person in question was not].” This is not how real life, or court, works.

Brett @123 is right. The provision for remitting a form is imposed by the government, no question. However, Sisters of Mercy was a goth band. I think you mean Little Sisters. I knew the bass player of Sisters of Mercy, who was also bass player for The Bags and a retail clerk at the cosmetics counter of one of the department stores in my hometown. But the question is whether or not a provision for signing a piece of paper is a substantial burden. Signing a piece of paper. Dwell on that.

The women-on-the-street example, John, misses an important factor, namely, the affirmative actions of government. RFRA involves situations where government, rightly or wrongly, urges or coerces or enables private persons to do stuff. Your example is between two private persons. I don’t have a legal right to complain about too much leg. Meanwhile, government might or might not have such a power. Only when the government wants to urge or coerce or enable a private person to shut down exhibitions of leg might RFRA become an applicable statute. It isn’t a matter of ME adjusting YOUR behavior. It’s a matter of government adjusting YOUR behavior.

As usual, I fucked up. I do of course have a right to complain about too much leg. It’s called the First Amendment (negative, passive aggressive). I don’t have a right not to be compelled to view too much leg. It’s *possible* that the government might afford me the right to complain about too much leg. But it would need to have a REALLY GOOD REASON, and it would need to make sure that it was ONLY targeting leg and that it wasn’t shutting down exposures of LEG that were perfectly harmless.

Let’s suppose I’m an extreme pansexual. I’m into everything, from butts and elbows and earlobes to automobiles and butterflies and Oreo cookies. I don’t need you to point out to me the arbitrary distinction between legs and boobs. Nevertheless, we live in a regime that does want to make that distinction. Do you want me to win this argument?

The government is not “doing the coercing.” The government is respecting the First Amendment prohibition against telling religious practitioners that they’ll have to stop practicing their religion in situations that trigger an obligation to facilitate abortions. (I’m being devil’s advocate here.) The only difference from Lochner is the absence there of a clear constitutional proscription against establishment of religion. Ergo, employees and employers are free to bargain, so goes the tale. One factor driving that bargain is government mandated provision of insurance. You work (f/t) for McDonald’s and you get their insurance. You work for Dean’s Burgers (total employees: 4) and you have a federally facilitated avenue for getting insurance, because Dean’s doesn’t offer any. You work for a franchise of the national megastore Halos ‘r’ Us, a Christian limited liability partnership, and you get insurance that doesn’t cover contraception. These are all “relationship[s] between two persons.”

Okay, one last stab tonight. You write, “Indeed, I would think RFRA itself should self-cancel in such cases.” I think you are pointing out how government accommodation of the behavior or belief of some encroaches on that of others. If so, this misses some background assumptions that are crucial to the operation of the legal system. One such assumption is that Congress doesn’t intend to effect an absurdity when it enacts a law. When reviewing a law, the courts are supposed to avoid imputing absurd results to the law. Thus RFRA should not be interpreted as authorizing religious people to direct the behavior of non-religious people, even if an argument could be made in economic or game-theory terms that such is its logical result. This is why we call them “judges.” And yet we see the standard for “substantial burden” decline precipitously and absurd results ensue.

It’s not this way, but it should be this way:

The real test for a religious exemption should be: Would you allow the same exemption for non-religious reasons? Do you? Etc.

As in, if a person chooses not to comply with the law, and offers up no more than “It is my personal feeling that I should not have to comply” . . . . and if the court would say, okay, you don’t have to . . . . then and only then should someone be able to do this by citing religious objections. That is, if we have equality before the law. If, OTOH, we are a theocracy, or a theocracy in the making, then we would allow those religious objections to be privileged above anything else.

In reality, since there is absolutely no evidence whatsoever to support the concept of divinity, and even less than zero evidence to support one interpretation of divinity over all others, we shouldn’t be basing our laws on this complete absence.
Someone’s religious views are personal, and they are welcome to them, but they don’t get to impose their views on others or use them to escape from adherence to laws that others can not escape from.

In reality, there is absolutely zero logic in privileging belief in ancient fictions above any other sort of personal belief. There is no difference between believing the Harry Potter books depict reality and that the bible does. Or that Elvis lives. Or Bigfoot. Or the Loch Ness monster. There is no essential difference, as far as connection with reality, between variations of religious beliefs themselves, as in worshiping Odin, Lugh, Zeus or Yahweh. It’s all a belief in fictions, and should have no bearing on our laws whatsoever.

It was a mistake to grant any religious exemptions, ever, in any case. This immediately denies equal rights to non-believers, and often, to believers of other faiths. And it’s obviously a slippery slope. Yahweh, for instance, demands the death penalty for people who get tattoos, wear mixed fabrics, eat shellfish, talk back to parents, plant more than one crop in the same field, fail to be virgin brides, etc. etc. etc. If someone can cite one tiny aspect of their preferred religious fiction to support avoidance of the law, why not these others? If they say they must adhere to the word of their god, and their god is a genocidal madman, what next?

@138,

Thank you for the link and the rec. Sounds like a very good read.

Not sure if the author addresses this aspect, but another major key here is this (at least for me): Nothing prevents a person, in any of these RFRA cases, from simply adhering to their own religious views via their own personal objections. As in, if they don’t wish to use contraception, or marry someone from the same sex, no one is forcing them to. They can object to these things via religion if they choose and just not do them. As far as I know, there are no laws on the books that say a person must use contraception, get an abortion or marry someone of their sex. All of these are voluntary actions, and every American is free to opt out of they have a problem with these things — for any reason.

The obvious solution to the religious belief quandary: don’t. Just don’t engage, if that’s one’s wish, in an activity that purportedly goes against religious belief. But that person simply should not have the right to prevent others from engaging in these things if they are legal. And if it’s a matter of public accommodation for a legal activity, they should not have the right to deny the voluntary actions of others. It’s none of their business. The owner of Hobby Lobby, for instance, is free to say no to contraception — for themselves only. He or she should never be able to impose their views on their employees, either via negation of a right or the forced adherence to those views. It’s none of their business, and it’s a denial of the religious freedoms of their employees to be forced to adhere, etc.

It surprises me that America has regressed to the point where this is even in dispute, much less that the forces of the religious right seem to be gaining ground and winning some of these cases.

Jon Stewart already explained the legal nuances of the case in exhaustive detail:

http://www.cc.com/video-clips/z4n7l6/the-daily-show-with-jon-stewart-sisters-act

Dean, just out of curiosity: are there any cases at all where the courts upheld RFRA rights that were not consistent with conventional conservative religiosity (for example, religious groups that embrace same sex marriage, contraception, abortion, pornography, drug use other than mass wine, etc.)? There are no such cases, right (*)? In other words, isn’t it obvious that the deference of the courts to the religious arguments of some plaintiffs but not others constitutes a blatant violation of religious neutrality? How do judges and legal scholars try to justify this?

(*) For example, in the fight about same sex marriage, some religious groups did state that their religious freedom was infringed by the ban on SSM (and at least one religious minister was actually punished for officiating at an illegal same sex marriage), yet that argument never achieved any relevance in the legal and political debate, whereas the right of religious groups not to recognize SSM (which nobody ever even questioned) was always a big deal.

Oh, and btw, Jesus never says a thing about abortion, contraception or same sex marriages — that we know of. If a person gets an abortion, or uses contraception to prevent unwanted pregnancies, or marries someone of their own sex, they haven’t gone against any of the teachings of the founder of Christianity . . . which makes these “religious” exemptions all the crazier, and the sanction against even questioning these beliefs crazier still.

TM @144: Without doing thorough research on the topic, I consulted an article entitled, “Validity, construction, and application of Religious Freedom Restoration Act (42 U.S.C.A. §§ 2000bb et seq.),” which you won’t find freely available on the Web. It includes several sections and subsections pertaining to prisoners’ rights, including digests of cases involving prisoners whose challenges to prison rules were validated by courts under RFRA. For example, a 1994 S.D.N.Y. court “granted a preliminary injunction to plaintiffs who sought the return of their Orisha beads which they wore in conformity with the Santeria religion and which had been confiscated by Department of Correctional Services under a prison rule prohibiting inmates from wearing beads…” A 1995 E.D.N.Y. court “granted a preliminary injunction to Sufi Muslim state inmates prohibiting a correctional facility from enforcing a policy prohibiting the display of black dhikr (meaning ‘to remember’ in Arabic) beads, which inmates used to aid in reciting or recalling the 99 names of Allah…” A 1995 Fifth Circuit case “held that the District Court should not have summarily dismissed a Rastafari inmate’s action brought under the Religious Freedom Restoration Act…” The plaintiff’s suit challenged “prison grooming regulations that prohibited long hair and beards.” (Reversal of a summary dismissal doesn’t mean the plaintiff wins; it only means he doesn’t summarily lose.) Similarly, a 2002 D.D.C. ruling: “Rastafarian and Muslim inmates’ sincerely held religious beliefs forbidding them from cutting their hair or shaving their beards were substantially burdened by prison grooming policy prohibiting long hair and beards, as required to support their claim that policy violated RFRA.”

TM @ 144, Dean Rowan @ 154

Cases about prisoners are more likely RLUIPA than RFRA cases. Holt is probably the best-known (Muslim beard case).

Just off the top of my head, cases that meet TM’s request:
Ayahuasca (Gonzales vs O Centro Espirita…)
Eagle feathers (McAllen Grace Brethren Church) (often referred to as Soto)

Er, address that comment directly above @153 to SamChevre @152.

TM @ 144:
“are there any cases at all where the courts upheld RFRA rights that were not consistent with conventional conservative religiosity (for example, religious groups that embrace same sex marriage, contraception, abortion, pornography, drug use other than mass wine, etc.)?”

See Gonzalez v. O Centro Espirita Beneficente Uniao do Vegetal. Using the RFRA a Brazilian Christian sect got an injunction against the feds allowing them to import hallucinogenic tea from the Amazon; the Supreme Court upheld it on appeal by the government. Note that the decision was unanimous (Alito didn’t participate because arguments occurred before he was seated).

That aside, if (as Brett thinks) the Sisters can sign the form and doing so will have no effect whatsoever, it’s hard to imagine they’re substantially burdened by signing the form. It can’t be a moral or religious substantial burden, because the form is meaningless in their situation. They could argue that the government is making them sign a form unnecessarily – all that pushing of the pen! – but when did that act in itself become a substantial burden?

TM @155: “Beards and beads are hardly counter-examples to traditional religiosity.” Well, I was responding to your request for “any cases at all where the courts upheld RFRA rights that were not consistent with conventional conservative religiosity…” Santeria is not generally regarded as conventionally conservative, I think, though its history does intersect with the Roman Catholic church. But otherwise I concur with the distinctions you pose and with your political analysis of the courts’ amenability to hear the complaints of less staunchly conservative parties.

Signing the form does have an effect: it gives notice, ultimately to HHS, that the organization objects to providing coverage to contraceptive services. But the plaintiffs don’t want to do even that, because it’s an alternative “scheme” to deliver the services. In effect, the plaintiffs lodge their index fingers in their ears and sing, “La, la, la, la, la!” They don’t want even to affirmatively decline contraceptive service provision. They want to pretend there is no such thing as contraceptive service provision.

156: “Ok, the nuns’ employees are not all nuns. Has anybody asked them if they want this sign formed? Religious organizations DO tend to hire co-religionists. They’re even allowed to discriminate on that basis.”

What an asshole BS. As if it mattered to anybody on the right what the employees want. If anybody might have an obligation to ask the employees what they want, it would be the employer, not the government (which btw makes rules not for particular employers and particular employees but for all of them).

In any case, BB is being totally illogical even by his standards. If the all employees (and their covered dependants) agreed with the Sisters on the question of contraception (which, even if they were coreligionists, would be highy unlikely given that the vast majority of Catholics use contraception), so if there were no question of any of the employees making use of contraception coverage, then the whole case would be moot anyway. The Sisters after all claim that they are compelled to assist people in getting unholy contraception, even indirectly. That, they claim, is the burden on their (and the Hobby Lobby owners’) conscience (and pace Brett not the hassle of being forced to sign a form for no reason at all, which I get it is only one step from burning heretics in BB’s libertarian fantasy world).

BB is really taking right-wing dishonesty to new standards in this thread. What is at stake in the Little Sisters and Hobby Lobby bad faith propaganda act is, and always was, whether employees of contraception-abhorring employers can be prevented from getting coverage under their employer health plan, with the result of making it a little bid harder for those employees to get contraception, making them jump through more hoops, finding a way to shame them as Holbe showed above. That, in addition to the propaganda effect, was always the whole point of the exercise. The fact that this goal will not be reached – employees will still get contraception if they wish – doesn’t make the intention of messing with other people’s lives just because they have power over them as employers any less disgusting. And that disgust is only topped by the disgust earned by Libertarian shills for the totalitarian power of employers.

Screwing with people is a major function of government, or else much the government does is utterly inexplicable.

See, as I see it, there are two possible explanations for the phenomenon you’re observing here.
+ the government does inexplicable things, randomly and to hassle people.
+ the government does things for good and proper reasons that you are too stupid to understand.

I mean, from your perspective the results would look the same, wouldn’t they: people doing things you couldn’t see an explanation for. But your explanation would require a huge organisation dedicated to the task of fucking with people for no benefit that even you can see,
whereas my explanation just requires that there be one person, untrained and unskilled, acting with an unearned and unjustified confidence: something that happens every day, something that I’m sure you’ve seen on the part of others.

Occam’s razor, Brett. My explanation is simpler, don’t you agree?