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VARIETIES OF BURDEN IN RELIGIOUS ACCOMMODATIONS

  • Anna Su (a1)

Abstract

Religious accommodation analysis often takes the form of a tripartite test. One of the factors in such a test is the presence of burden, the current judicial understandings of which have been inadequate to capture a wide range of impact that government regulations have on the individual or community practice of religion. This article considers and compares the jurisprudence of the high courts of the United States and Canada and the European Court of Human Rights and argues for an expansive understanding of the burden requirement in the evaluation of religious accommodation claims, namely to consider burden as (1) coercion, (2) impact, and (3) ratification. I argue that it is imperative to acknowledge different kinds of burden before proceeding to determine its gravity. This approach takes religion more seriously than prevailing approaches and provides for a more equitable distribution of the burden of proof in religious accommodation claims.

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References

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1 See Halberstram, Daniel, Desperately Seeking Europe: On Comparative Methodology and the Conception of Rights, 5 International Journal of Constitutional Law 166–82, 167–68 (2007).

2 Follesdal, Andreas, Appreciating the Margin of Appreciation, in Human Rights: Moral or Political 269–85 (Etinson, Adam, ed., 2017).

3 See, e.g., Su, Anna, Judging Religious Sincerity, 5 Oxford Journal of Law & Religion 2853 (2016); Adams, Ben & Barmore, Cynthia, Questioning Sincerity: The Role of Courts after Hobby Lobby, 67 Stanford Law Review Online 5966, 59 (2014); Chapman, Nathan, Adjudicating Religious Sincerity, 92 Washington Law Review 11851254 (2017).

4 Association for Solidarity with Jehovah's Witnesses and Others v. Turkey, European Court of Human Rights (2016), http://hudoc.echr.coe.int/eng?i=002-11178.

5 134 S. Ct. 2751 (2014).

6 Syndicat Northcrest v. Amselem [2004] 2 S.C.R. 551 (Can.).

7 Alberta v. Hutterian Brethren of Wilson Colony [2009] 2 S.C.R. 567 (Can.).

8 Stedman v. United Kingdom, App. No. 29107/95, 23 Eur. H.R. Rep. 168 (1997), http://hudoc.echr.coe.int/eng?i=001-3620. The Court has never had the opportunity to rule on a similar case, so this Commission decision remains the authoritative interpretation of Article 9; For an American example, see Rapier v. Harris, 172 F.3d 999, 1006 n. 4 (7th Cir.1999) (holding unavailability of pork-free meals on three out of 810 occasions constitutes only de minimis burden on prisoner's religion).

9 Case of the Church of Jesus Christ of Latter-Day Saints v. United Kingdom, European Court of Human Rights (2014), para. 34, http://hudoc.echr.coe.int/eng?i=001-141369.

10 485 U.S. 439, 449 (1988).

11 See Moon, Richard, Limits on Constitutional Rights: The Marginal Role of Proportionality Analysis, 50 Israel Law Review 4968, 67 (2017) (“In section 2(a) religious accommodation cases, the courts have been quick to find a breach of the right. Any non-trivial restriction on a religious practice will amount to a breach of the section.”). The Supreme Court of Canada might be quick to find restriction but only when it comes to one particular type of burden.

12 McCrudden, Christopher, Catholicism, Human Rights, and the Public Sphere, 5 International Journal of Public Theology 331–51, 337 (2011).

13 DeGirolami, Marc O., Substantial Burdens Imply Central Beliefs, 2016 University of Illinois Law Review Online 1926, 21 (“[A] burden on religious exercise is substantial if it interferes in a significant, important, or central way with the claimant's religious system.”); Sullivan, Winnifred Fallers, Judging Religion, 81 Marquette Law Review 441–60 (1998).

14 See Levine, Samuel, The Supreme Court's Hands-off Approach to Religious Doctrine: An Introduction, 84 Notre Dame Law Review 793806 (2009).

15 [2007] 3 S.C.R. 607, para. 18 (Can.).

16 Su, supra note 3.

17 Garnett, Richard W., A Hands-Off Approach to Religious Doctrine: What Are We Talking About?, 84 Notre Dame Law Review 837–64 (2009).

18 Id. at 854–55.

19 An early argument to this effect is in Garvey, John, Free Exercise and the Values of Religious Liberty, 18 Connecticut Law Review 779802 (1986); see also Gedicks, Frederick Mark, An Unfirm Foundation: The Regrettable Indefensibility of Religious Exemptions, 20 University of Arkansas at Little Rock Law Journal 555–74 (1998). For newer iterations, see Christopher Eisgruber & Lawrence Sager, Religious Freedom and the Constitution (2007); Schwartzman, Micah, What If Religion Is Not Special, 79 University of Chicago Law Review 13511428 (2012).

20 See, e.g., Lupu, Ira C., Hobby Lobby and the Dubious Enterprise of Religious Exemptions, 38 Harvard Journal of Law and Gender 35102 (2015).

21 Cf. Welsh v. United States, 398 U.S. 333, 357 (1970) (Harlan, J., concurring) (“It not only accords a preference to the ‘religious’ but also disadvantages adherents of religions that do not worship a Supreme Being.”).

22 Laycock, Formal, Substantive, and Disaggregated Neutrality toward Religion, 39 DePaul Law Review 9931018 (1990).

23 Motorcycle Safety Helmet Exemption Regulation, B.C. Reg. 237/99 (Can.); Motor-Cycle Crash-Helmets (Religious Exemption) Act, (1976) c. 62 § 1 (UK).

24 403 U.S. 602, 622 (1971).

25 John Locke, A Letter Concerning Toleration 40–41 (William Popple ed., Bobbs-Merrill 1955) (1689).

26 Howe, DeWolfe, The Supreme Court 1952 Term-Foreword: Political Theory and the Nature of Liberty, 67 Harvard Law Review 9195, 91 (1953). For modern articulations, see Garnett, Richard, The Freedom of the Church:” (Towards) an Exposition, Translation, and Defense, 21 Journal of Contemporary Legal Issues 3358 (2013); Horwitz, Paul, Defending Religious Institutionalism, 99 Virginia Law Review 1049–63 (2013).

27 See, e.g., Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission, 132 S. Ct. 694, n.4 (2012) (“We conclude that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar.”).

28 2010-V European Court of Human Rights 397.

29 Thomas v. Review Board of Indiana Employment, 450 U.S. 707, 715 (1981).

30 Syndicat Northcrest v. Amselem [2004] 2 S.C.R. 551 (Can.).

31 Id. at para. 56.

32 Skugar and Others v. Russia, European Court of Human Rights (2009), http://hudoc.echr.coe.int/eng?i=001-96383 (admissibility decision).

33 For a list of state religious exemption statutes in the United States, see Marriage Solemnization: Religious Exemption Statutes, National Conference of State Legislatures (2017), http://www.ncsl.org/research/human-services/same-sex-marriage-religious-exemptions-statutes.aspx (last visited July 25, 2017).

34 For a discussion of the differences, see Porat, Iddo & Cohen-Eliya, Moshe, American Balancing and German Proportionality: The Historical Origins, 8 International Journal of Constitutional Law 263–86 (2010); Francisco J. Urbina, A Critique of Proportionality and Balancing (2017).

35 42 U.S.C. § 2000bb–1 (1993).

36 See also R v. Oakes [1986] 1 S.C.R. 103, paras. 69–70 (Can.).

37 Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 Harvard Law Review 933–90, 938 (1989).

38 310 U.S. 296, 303–04 (1940).

39 Pichon and Sajous v. France, 2001-X European Court of Human Rights 381, http://hudoc.echr.coe.int/eng?i=001-22644 (“The Court would point out that the main sphere protected by Article 9 is that of personal convictions and religious beliefs, in other words, what are sometimes referred to as matters of individual conscience.”). Note that this was an admissibility decision although the court did discuss the merits.

40 Hamilton, Marci, The Belief/Conduct Paradigm in the Supreme Court's Free Exercise Jurisprudence: A Theological Account of the Failure to Protect Religious Conduct, 54 Ohio State Law Journal 713–96 (1993).

41 Lupu, supra note 37; see also McNally, Michael, From Substantial Burden on Religion to Diminished Spiritual Fulfillment: The San Francisco Peaks Case and the Misunderstanding of Native American Religion, 30 Journal of Law and Religion 3664 (2015).

42 476 U.S. 693, 696 (1986).

43 Id. at 703.

44 Id. at 700; Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439, 448 (1988).

45 485 U.S. at 449.

46 374 U.S. 398, 403–04 (1963) (“We turn first to the question whether the disqualification for benefits imposes any burden on the free exercise of the appellant's religion. We think it is clear that it does.”).

47 Id. at 404.

48 See, e.g., McConnell, Michael, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harvard Law Review 14091517 (1990) (arguing that the Free Exercise Clause created a right of religious exemption).

49 Case of Eweida and Others v. United Kingdom, 2013-I European Court of Human Rights 215, http://hudoc.echr.coe.int/eng?i=001-160486.

50 Pearson, Megan, Article 9 at a Crossroads: Interference Before and After Eweida, 13 Human Rights Law Review 580602, 589–90 (2013).

51 Cha'are Shalom Ve Tsedek v. France, 2000-VII European Court of Human Rights 231, http://hudoc.echr.coe.int/eng?i=001-58738.

52 See generally Ran Hirschl, Going Global? Canada as Importer and Exporter of Constitutional Thought, in Richard Albert and David Cameron eds., Canada in The World: Comparative Perspectives on the Canadian Constitution 305–23 (2017).

53 Syndicat Northcrest v. Amselem [2004] 2 S.C.R. 551 (Can.) para. 145 (original emphasis). Note the Supreme Court of Canada also cited the American case of Thomas v. Review Board of Indiana in adopting the subjective test for sincerity determinations: “In the United States, where there is a richness of jurisprudence on this matter, the United States Supreme Court has similarly adopted a subjective, personal and deferential definition of freedom of religion, centred upon sincerity of belief.” Amselem [2004] 2 S.C.R. para. 45 (citing Thomas v. Review Board of Indiana, 450 U.S. 707 (1981)).

54 Alberta v. Hutterian Brethren of Wilson Colony [2009] 2 S.C.R. 567, para. 32 (Can.).

55 Burwell v. Hobby Lobby Stores Inc., 134 S. Ct. 2751, 2759 (2014).

56 Corbin, Caroline Mala, Deference to Claims of Substantial Religious Burden, 2016 University of Illinois Law Review Online 10–18 (2016).

57 Gedicks, Frederick Mark, Substantial Burdens: How Courts May (and Why They Must) Judge Burdens on Religion under RFRA, 85 George Washington Law Review 94151 (2017).

58 Id. at 101.

59 Id. at 131.

60 Flanders, Insubstantial Burdens, in Religious Exemptions 279–304 (Kevin Vallier & Michael Weber eds., 2018).

61 Helfand, Identifying Substantial Burdens, 2016 University of Illinois Law Review 1771–808, 1775 (2016).

62 Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151, 1182 nn.28–29 (10th Cir. 2015) (vacated and remanded for settlement discussions sub nom). U.S. Health and Human Services has since changed the regulations to accommodate these types of cases. See Moral Exemptions and Accommodations for Coverage of Certain Preventive Services under the Affordable Care Act, Federal Register, https://www.federalregister.gov/documents/2017/10/13/2017-21852/moral-exemptions-and-accommodations-for-coverage-of-certain-preventive-services-under-the-affordable (last visited Oct. 9, 2017).

63 Robert Cover, The Supreme Court, 1982 Term—Foreword: Nomos and Narrative, 97 Harvard Law Review 4–68, 67 (1983).

64 Sandel, Michael, Religious Liberty—Freedom of Conscience or Freedom of Choice, 1989 Utah Law Review 597615, 614–15 (1989) (“[A]ssimilat[ing] religious liberty to liberty in general … confuses the pursuit of preferences with the exercise of duties and so forgets the special concern of religious liberty with the claims of conscientiously encumbered selves.”).

65 [2017] 2 S.C.R. 386, para. 71 (Can.).

66 Flanders, supra note 60.

67 Global Restrictions on Religion Rise Modestly in 2015, Reversing Downward Trend, Pew Research Center, http://www.pewforum.org/2017/04/11/global-restrictions-on-religion-rise-modestly-in-2015-reversing-downward-trend/ (2017).

68 Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).

69 Burwell v. Hobby Lobby Stores Inc., 134 S. Ct. 2751 (2014).

70 Employment Division v. Smith, 494 U.S. 872 (1990); Sherbert v. Verner, 374 U.S. 398 (1963); Thomas v. Review Board, 450 U.S. 707 (1981); Goldman v. Weinberger, 475 U.S. 503 (1986).

71 See, e.g., Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890) (authorizing federal seizure of almost all property of the disincorporated Mormon church).

72 But cf. McConnell, Michael, Why Protect Religious Freedom, 123 Yale Law Journal 770810 (2013) (reviewing Brian Leiter, Why Tolerate Religion (2012)).

73 While the doctrine is explicitly named as such in the United States, no such formal doctrine exists in the jurisprudence of either the ECtHR or Supreme Court of Canada. However, these courts would likewise be loath to evaluate the theological substance of an individual's religious claim.

74 Syndicat Northcrest v. Amselem [2004] 2 S.C.R. 551, para. 75 (Can.).

75 [2006] 1 S.C.R. 256 (Can.).

76 Case of Eweida and Others v. United Kingdom, 2013-I European Court of Human Rights, para. 94.

77 406 U.S. 205 (1972).

78 Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439, 450 (1988).

79 42 U.S. Code §1996 (2006).

80 535 F.3d 1058 (9th Cir. 2008). This is most recently affirmed in Slockish v. United States Federal Highway Administration, Case No. 3:08-cv-01169-YY, 2018 U.S. Dist. LEXIS 98346 (District of Oregon Mar. 2, 2018).

81 535 F.3d at 1072.

82 535 F.3d at 1070.

83 42 U.S.C. § 2000cc-2(a) (2012).

84 Tuttle, Ira C. Lupu & Robert W., The Forms and Limits of Religious Accommodation: The Case of RLUIPA, 32 Cardozo Law Review 1907–36 (2011).

85 McNally, Michael D., Religion as Peoplehood: Native American Religious Traditions and the Discourse of Indigenous Rights, in Handbook of Indigenous Religions 5279 (Johnson, Greg & Kraft, Siv Ellen eds., 2017).

86 Newman, Dwight, Ruozzi, Elisa & Kirchner, Stefan, Legal Protection of Sacred Natural Sites Within Human Rights Jurisprudence: Sapmi and Beyond, in Experiencing and Protecting Natural Sites of Sami and other Indigenous Peoples, 1126 (Heinämäki, Leena & Herrmann, Thora Martina eds., 2017).

87 Beaman, Aboriginal Spirituality and Freedom of Religion, 44 Journal of Church & State 135, 146 (2002).

88 Ktunaxa Nation v. British Columbia, 2015 BCCA 352, para. 68 (Can.).

89 Beaman, supra note 87, at 142–43.

90 [1990] 1 S.C.R. 1025 (Can.).

91 295 European Court of Human Rights (ser. A) 26 (1994).

92 366 U.S. 599 (1961).

93 Id.

94 App. no 34199/96, Eur. Comm'n H.R. Dec. & Rep. (1998).

95 Id.

96 The term is first used in Sepinwall, Amy J., Burdening “Substantial Burdens,” 2016 University of Illinois Law Review Online 4352 (2016).

97 Id.

98 University of Notre Dame v. Sebelius, 743 F.3d 547, 553 (7th Cir. 2014) (“Notre Dame treats this regulation as making its mailing the certification form to its third-party administrator the cause of the provision of contraceptive services to its employees, in violation of its religious beliefs. Not so.”).

99 Zubik v. Burwell, 136 S. Ct. 1557, 1559 (2016) (“Petitioners allege that submitting this notice substantially burdens the exercise of their religion, in violation of the Religious Freedom Restoration Act of 1993.”).

100 Corbin, supra note 56, at 16.

101 Christian Medical and Dental Society of Canada et. al. v. College of Physicians and Surgeons of Ontario et. al., 2018 ONSC 579 (Can.) (affirming the mandatory referral requirement).

102 Id.

103 NeJaime & Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale Law Journal 2516–91 (2015); NeJaime & Siegel, Conscience Wars in Transnational Perspective: Religious Liberty, Third-Party Harm, Pluralism, in The Conscience Wars: Rethinking the Balance between Religion, Identity and Equality 187219 (Mancini, Susanna & Rosenfeld, Michel eds., 2017).

104 Helfand, supra note 61, at 1800.

105 See John Paul II, Evangelium Vitae [Encyclical on the value and inviolability of human life] (March 25, 1995), § 74, http://w2.vatican.va/content/john-paul-ii/en/encyclicals/documents/hf_jp-ii_enc_25031995_evangelium-vitae.html.

106 U.S. Conference of Catholic Bishops, Ethical and Religious Directives for Catholic Health Care Services: Fifth Edition (2009), http://www.usccb.org/issues-and-action/human-life-and-dignity/health-care/upload/Ethical-Religious-Directives-Catholic-Health-Care-Services-fifth-edition-2009.pdf.

107 See Barak-Corren, Netta, Beyond Dissent and Compliance: A Grounded Theory of Decisionmaking in Conflicts between Law and Religion, 6 Oxford Journal of Law and Religion 293322 (2017).

108 Sepinwall, supra note 96, at 49.

109 See U.S. Department of Labor, EBSA Form 700 (2014).

110 Cf. Flanders, supra note 60, at 300 (“I am willing to defer to the plaintiff as to whether a burden on her religion is ‘substantial.’ I am not willing to defer to the plaintiff as to whether there is a burden at all.”). Flanders’ position echoes many scholars writing in this field.

111 Little Sisters of the Poor v. Burwell, 794 F.3d 1151, 1194 (10th Cir. 2015).

112 Id. at 1191.

113 Gedicks, supra note 57; Helfand, supra note 61; Corbin, supra note 56.

114 S.L. v. Commission scolaire des Chênes [2012] S.C.R. 7, para. 24 (Can.).

115 Id.

116 Billingham, Paul, How Should Claims for Religious Exemptions Be Weighed?, 6 Oxford Journal of Law and Religion 123, 13–15 (2017).

117 DeGirolami, supra note 13 at 26.

118 [2012] S.C.R. 72. Note that in the Hutterian case the Supreme Court of Canada reasoned that the Hutterites had a meaningful alternative of hiring others to drive for them (since they will not be able to obtain driver's licenses without subjecting themselves to the photo requirement). See supra note 54.

119 Eisenberg, Avigail, What Is Wrong with a Liberal Assessment of Religious Authenticity, in Authenticity, Autonomy and Multiculturalism 145–59 (Brahm, Geoffrey, ed., 2015).

120 Thomas v. Review Board of Indiana Employment Security Division, et al., 450 U.S. 707, 716 (1981) (“One can imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause; but that is not the case here.”).

121 See generally the essays in Religious Exemptions (Kevin Vallier & Michael Weber eds., 2018).

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