Wednesday, March 26, 2014

RFRA/ACA Oral Argument and the Targeting/Standing Question

By Mike Dorf

My latest Verdict column asks why the argument for religious exceptions was mostly advanced by liberals in 1990 in Employment Division v. Smith but is mostly advanced by conservatives in the Hobby Lobby/Conestoga Wood case. I offer five factors that bear on the question. Here I want to add one brief thought on an issue that arose during the oral argument.

Consider an exchange between Justice Alito and SG Verrilli. Justice Alito posed a hypothetical question in which Congress bans kosher and halal slaughter on grounds that it is cruel. Would kosher and halal butchers that were organized as corporations be able to complain about such a law? SG Verrilli said that they might be able to, because such a law would single out religion, and thus fall outside of the "neutral" category of Smith and RFRA, triggering heightened scrutiny under the Free Exercise Clause. That in turn led Justice Alito to change the hypo to a law that requires that animals be stunned before slaughtering, a practice that would not target religion at all, but that (under standard interpretations of kashrut and halal) would forbid kosher and halal slaughter.

Putting aside my objection to all slaughter, and also putting aside SG Verrilli's answer to the revised hypothetical, I want to note here the seeming oddity of Verrilli's initial reply: His theory of the case appears to be that a business corporation does not have a religion for RFRA purposes when confronted with a law of general applicability, but that it does have a religion for Free Exercise purposes when confronted with a law that targets religion. But if a corporation can't have a religion, then why does it matter that the government is targeting the religion the corporation lacks, rather than incidentally burdening that non-existent religion?

One possibility might be that SG Verrilli thinks that the religious rights of corporations are broader than statutory rights under RFRA. After all, the targeting example arises under the Free Exercise Clause, not (just) RFRA. But that seems backwards. RFRA uses the word "person", which, as the plaintiffs' lawyer Paul Clement argues, at least presumptively covers corporations, pursuant to the Dictionary Act. The constitutional language does not more clearly point to religious rights for (business) corporations.

Maybe the better answer would be that laws that target religion for special burdens violate the Establishment Clause, which is a structural principle. In this view, a corporation that suffers a business detriment incurs an Article III injury, and then it can sue because anybody injured by a law that violates the Establishment Clause has standing to vindicate its structural principle.

I actually like that answer quite a lot because I share the SG's intuition that the corporate kosher or halal butcher should be able to object to the targeted law, even if, per RFRA, a corporate kosher or halal butcher has a weaker basis for objecting to the incidental effect of the mandatory stunning law. But adopting this position does lead to the anomaly that it essentially reads the Free Exercise Clause out of the Constitution.  Per Smith, non-targeted burdens do not implicate the Free Exercise Clause, while per my reconstructed reading of SG Verrilli's argument, targeted burdens violate the Establishment Clause, so any violation of the Free Exercise Clause is redundant. So we're left with a puzzle.


  1. You both are overthinking it. Making kosher meats illegal would violate the religious freedom of consumers. We would allow the corporation to bring the claim on its customers' behalf.

  2. 1) Of course I'm overthinking it. That's my job!

    2) More seriously, Verrilli offered third-party standing as a possible answer but it may not work. Under the relevant doctrine, there is supposed to be some special reason why the cusotmers themselves can't bring suit. At least that's what the Court says when it finds third-party standing. E.g., Griswold v CT; Craig v Boren. So it's possible that there would be no third-party standing, but I take the force of Alito's hypo to be that the kosher/halal butchers would have first-party standing.

    3) We can make that point clearer if we imagine a business that produces kosher or halal meat solely for export or for non-Jewish, non-Muslim customers who buy it solely because they think it is higher quality.

    4) Points 2) and 3) could be taken as further evidence of 1).

    5) As noted in the post, I am setting aside my objections to the whole enterprise. Were I to engage them, I'd note that the anti-cruelty justification for stunning laws is weak, given that it often doesn't work. For an interesting take on this by a rabbi, see . I think he vastly understates the suffering involved in kosher slaughter, as he seems to realize towards the end of his essay.

  3. I still don't like the blurring of three very specific and generally distinct forms of protection: Free Exercise, Establishment, and Equal Protection.

    If a law is designed to (or does) interfere with the free exercise of religion, it should be brought under that clause. Anti-kosher/anti-bris laws that are reasonably based on legitimate health or animal welfare concerns fit this mold.

    If a law is designed as promoting a particular religion, then it fits the Establishment Clause. I just don't see how an anti-kosher law naturally fits here, unless it is part of a broader scheme. Even then, the law is only tangentially-Establishment in nature.

    If a law is designed to discriminate against a particular religion-for instance, if the law only forbade the killing of animals by slicing their throat if it was done under the supervision of a Rabbi-or was otherwise done to promote anti-Jewish sentiment, then the EP grounds should provide the solution.

    I understand that, as liberals, we can be frustrated by limitations placed on certain clauses (such as the EP clause), and thus try to find creative solutions (by applying the Establishment clause). But this pollutes the various doctrines and prevents us from properly undertaking the appropriate legal reforms.

  4. I'm really not understanding how a ban on kosher/halal animal killing (in order to prevent cruelty to animals) infringes the right to exercise one's religion freely. Do Jews/Muslims have some sort of religious duty to kill animals? No. Either the Alito line of questioning is completely beside the point, or there is something I am really not getting.

    Even thinking about consumers of kosher/halal meat, is there some sort of religious obligation to eat kosher/halal meat? No. You can keep kosher/halal and be a vegetarian. It's true that making it impossible for kosher/halal butchers to operate in our society will make it more difficult for Jews and Muslims to find meat that they are permitted to eat. But that does not make it more difficult for Jews and Muslims to practice their religion.

    Suppose that religion R does not permit its adherents to eat meat unless it is dog/horse/cat meat. And suppose further that our society values dogs/horses/cats and passes laws banning the killing of these animals for food. If those laws are constitutionally permissible (and I assume they are), then the adherents of R are out of luck when it comes to eating meat. That is, if adherents of R want to stay in our society, then they have to become vegetarians. That's the way the cookie crumbles, as I see it. And the same applies to Justice Alito's hypo, or so it seems to me.

  5. Sam,

    Having to go vegetarian in order to keep kosher is a burden. Whether that burden is justified by a compelling government interest (or if a ban on kosher is a violation of equal protection because it constitutes unjustified discrimination against Jews), is a separate question. The answer might be yes, though in the absence of any other serious regulation on the humane treatment of livestock, I doubt it.

  6. Perhaps needless to say, I'm very sympathetic to Sam's point, both with respect to the particulars (given that I regard veganism as a blessing rather than a burden) and more generally. But I think that Sam makes an assumption that the Court will likely not share--namely, that to count as a substantial burden on religion under RFRA, a law must either forbid a religiously required act or require a religiously forbidden act. The case law in the lower courts, however, generally treats a law as a substantial burden if it substantially impedes conduct that comes from a strong religious motive, even if that conduct is not strictly speaking a religious requirement. City of Boerne v. Flores was such a case (before the Supreme Court said that RFRA can't validly apply to states or their subdivisions). The leaders of the church wanted to expand the physical structure but there was no religious obligation as such to build a bigger church. Nonetheless, it was assumed that the application of the historic preservation law was at least potentially a substantial burden.

  7. Sam Rickless, the hypo seems to assume that animals are still being slaughtered and a certain type of slaughter is being targeted. There might be a factual question that the banned slaughter is more cruel, but there would at least be standing to bring a case that the law is discriminatory.

    The Santeria case comes to mind. Justice Blackmun noted in his concurrence:

    "This case does not present, and I therefore decline to reach, the question whether the Free Exercise Clause would require a religious exemption from a law that sincerely pursued the goal of protecting animals from cruel treatment. The number of organizations that have filed amicus briefs on behalf of this interest, [n.*] however, demonstrates that it is not a concern to be treated lightly."

    The fact that butchers would raise a claim doesn't mean they will win -- an evenhanded law protecting animals (or maybe some animals) might provide a compelling state interest. But, RFRA opens up a claim that there is a "substantial burden" on their religion -- it isn't absolute, but all we need here is the right to make the claim (contra a corporation like Hobby Lobby in this case). As to a Jew or Muslim's obligation to eat animals, that would be a religious question. For instance, animal products are a traditional part of Passover meals. An argument can be made that it is not obligatory, but a person surely can have a religious belief otherwise.

  8. Just an FYI: The language Joe quotes from Justice Blackmun's Lukumi opinion was, of course, his, but he was urged to make the point by his law clerk, Sherry Colb. I don't generally tell law clerk stories, but this one can be verified by consulting Justice Blackmun's papers, and is thus "public" already.

  9. Thanks, Mike. I knew there was something I was missing. And Sherry, nicely done!

    It seems to me that Boerne could be dealt with on the basis of the principle that you rightly extracted from my comment. There is a religious obligation to build houses of worship that will accommodate and attract new religious adherents. To prevent a church from expanding is to make it more difficult for existing members to worship as a group, or to make it more difficult for a church to attract new members. That is a serious problem, if we are trying to protect the freedom to worship.

    If the principle you describe as underlying SCOTUS's free exercise jurisprudence is in force, then absurd consequences are legion. It might be that spitting at women whose arms and legs are not fully covered comes from a strong religious motive. So a law of general applicability that bans spitting at people would likely be struck down.. Or imagine a bakery whose owner refuses on religious grounds to serve atheists or gays. And so on. There is a great deal of strongly religiously motivated behavior that the government might have excellent reason to ban. But too bad. Government loses.

  10. I'm with you, Sam, and I much prefer your approach. Indeed, I think that Hobby Lobby is itself a good example of the problem here. I don't understand the owners of Hobby Lobby or Conestoga Wood to be saying that their religion forbids them from providing employees with health insurance that covers abortifacient contraception. Rather, they have a religious obligation not to use such abortifacients and they then say that therefore they are morally opposed to assisting others in getting it.

  11. Anonymous1:57 AM

    "To prevent a church from expanding is to make it more difficult for existing members to worship as a group, or to make it more difficult for a church to attract new members. That is a serious problem, if we are trying to protect the freedom to worship."

    Whether or not this is true depends on the religion one is talking about and even within the major religions which school of thought one subscribes too. There is a Perennial debate in protestant circles about the "unchurched" and whether people who do or do not attend a physical church are in fact Protestant. This has been an intermindable debate within the Catholic tradition as well between those like St. Augustine who focus on the "church invisible" and those who focus on the "church temporal". This latter view was summed up nicely by the theologian C.S. Lewis when he stated that what made a church a church was the fact that it was a "community of place and not of liking." Indeed, its not to far off the mark to say that one of the major difference between Pope Benedict and Pope Francis is that Benedict made a major focus on the church invisible and the Francis is more concerned about the church temporal.

    Sam's knee jerk comment effectively highlights the underlying problem with the RFRA "substantial burden" test. Whether the physical expansion of a church is a "serious problem" all depends on who you ask. Ask a 7th Day Adventist and they will likely tell you not its not because their community definition doesn't revolve around a physical church. Ask Pope Francis the question and you might get a different theological answer than one would from Pope Benedict. So the idea that the SCOTUS can somehow operate in a religiously neutral way under the RFRA's act is fallacious. Such a claim too narrowly focuses on the case at bar and ignores the impact of such decisions on the faith communities which it impacts. Worse, it has an implicit bias towards those religious who feel aggrieved of the government. Imagine one Native American who claims that peyote regulation is a substantial burden while another files an amicus belief claiming it is not. This is the boondoggle we are headed for. SCOTUS can stick its head in the sand and pretend it's just deciding the case at bar and not deciding religious issue. But the pretense should fool no honest observer.

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  13. I appreciate clerk tidbit. Reading her book, I take that at the time she wasn't a vegan, since that would be 20 years ago, and she wasn't one that long.

    Sam Rickless seems to be exaggerating the weakness of the other side (not necessary given it is already weak). The spitting ban might in some small way "burden" religious practice, but it is not the sort of "substantial burden" RFRA, including state RFRAs, is meant to handle. Not even close.

    Hobby Lobby actually has to do something here -- provide something -- however weak the burden is. It is not any sort of law on the books that may in some way make it a bit harder (like a red light in front of a church along with other streets slowing down church goers) to do something.

    There is that word "substantial," which should mean more than what the HL side claims, but even they must think it has more bite than the spitting example suggests.

    The butcher example is the sort of serious claim that such laws would consider -- dietary rules is an important component of religious practice. And, like the contraceptive cases, the suppliers are an important aspect of the right at issue.

    Now, as JimmyD argues, maybe even this opens up a can of worms. But, even if you don't like RFRA, the government is still going to have some sort of religious exemptions on the books & they have been recognized to not violate the establishment clause if done right.

    So, at some point, we will have to settle on some sort of line-drawing. Since I respect the interests of religious and conscientious individuals, it adds one more problem with the Hobby Lobby approach. It perverts an important concern and will be in practice applied unfairly (see a recent post at Balkinization on this point).

  14. As Joe is getting out, the standard is not whether it makes it impossible for one to comply with their religious obligations. Instead, the question is whether it creates a "substantial burden." Having to go vegetarian because of an inability to eat kosher meat would be a burden. So, of course, would be having to go vegetarian because your religion requires you to only eat meat from animals who have lost fights to the death with other animals. It's the compelling government interest that makes the latter an easy case but the former much tougher (imagining a hypothetical ban).

    Now, my own personal view is that the multi-step test, where you first determine a burden and then determine a compelling interest, lacks an insufficient amount of balance. The result is bad caselaw - as Courts face difficult cases where the burden is low but so is the government interest, or cases where caselaw compels a bad result when the burden (or interest) is more moderate but the interest (or burden) is severe (or relatively insignificant).

  15. What is your favored approach Justin?

    I would add that "substantial burden" specifically is being used here for general applicable laws applied to all. A non-neutral law, even if the burden on religion is not really 'substantial," would be another matter.

    There is already other means in place to protect religious liberty, including institutional autonomy, ministerial exemptions, protection from coerced speech (and other cases where other 1A interests are applied in a religious context) etc.

    No wonder Prof. Dorf overthought it -- I do so, even w/o it being my job!

  16. If I could alter the topic slightly, could someone explain to me a problem I have with this case? If Hobby Lobby wins, what would prevent a future business from also trying to use religious beliefs to get out of following the law in these following scenarios:

    1) Motel 6 religious beliefs prohibit it from renting rooms to unmarried couples, same sex couples or mixed race couples?

    2) Hobby Lobby's religious beliefs prohibit it from giving coverage to an employees same sex spouse?

    I understand that different laws are in play in those scenarios but wouldn't the conservative argument (generally) be the same?

  17. Hi, Ian. I believe I have an answer for Your scenarios. In case #1, the compelling government interest would be the prevention of open hostilities between otherwise peaceful Members of society combined with an interest Mssr. Clement mentioned during oral arguments: the emotional harm done when discriminated against is practically irreparable; additionally, no less restrictive means exist to advance that interest.

    In case #2, as far as I know, nothing prevents Hobby Lobby from denying such coverage now, be the Spouse of the same sex or not. So, it's not as if the government is even claiming any interest, much less a compelling one.

  18. it isn't absolute, but all we need here is the right to make the claim (contra a corporation like Hobby Lobby in this case). As to a Jew or Muslim's obligation to eat animals, that would be a religious question. For instance, animal products are a traditional part of Passover meals. An argument can be made that it is not obligatory, but a person surely can have a religious belief otherwise.

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