The New York Times reports that,
[Kagan, as a White House lawyer during the Clinton Administration,] recommended that the federal government intervene in a case to support religious freedom. The California Supreme Court ruled that a landlord violated a state law prohibiting housing discrimination by refusing to rent an apartment to an unwed couple because she considered sex outside marriage to be a sin.Ms. Kagan scorned the California justices’ rationale that the landlord’s religious freedom was not burdened because she could get another job. “The plurality’s reasoning seem to me quite outrageous — almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state,” Ms. Kagan wrote.
Prof. Chris Lund found the memo itself, and I uploaded it; the California Supreme Court opinions are here, and a brief explanation of the history of the Religious Freedom Restoration Act is here. (Note that the memo was written before the Supreme Court held that RFRA exceeded Congressional power when applied to the states.)
For whatever it’s worth, I agree with the memo. But note that the memo doesn’t reveal Kagan’s views on the bottom line question, which turns on “whether the state has a compelling interest in application of its anti-discrimination provision, which would justify imposing a substantial burden on Smith’s religious practice.”
ruuffles says:
Why is she using a manual typewriter in mid 1996?
June 12, 2010, 5:03 pmeaglewingz08 says:
Must be the same manual typewriter that Dan Rather used in his Bush Texas ANG Memos expose.
June 12, 2010, 5:12 pmptt says:
How far would you go? The landlady in this case is non-resident. The units are two sets of duplexes rented out as a purely commercial venture.
Does your opinion change at some point with more housing units in play?
One assumes you would also favor her right to refuse to rent to barbarian, pardon me, gay couples.
How about other things based on “religious convictions”?
June 12, 2010, 5:45 pmGuy says:
The rationale that “oh, you can just get another job” is pretty terrible, but it’s not clear to me why it burdens the landlord’s religious freedom in the first place, how does requiring her to rent to people she believes to be living in sin inhibit her from practicing her religion? Anyway, why should religious beliefs give you a license to violate generally applicable laws intended to further a secular purpose?
Would it inhibit the religious freedom of a conservative Muslim to say they can’t fire an employee for drawing a picture of Mohammad?
June 12, 2010, 5:48 pmGuy says:
Or would it inhibit the religious freedom of an employer to say that that employer can’t issue a policy that they won’t hire Jews?
June 12, 2010, 6:08 pmEugene Volokh says:
1. ptt: I think all the situations you describe involve a substantial burden; but the question — whether as to gay couples, unmarried straight couples, interracial couples, or whatever else a landlady might object to for religious reasons — still remains whether the government can justify the burden as necessary to serve a compelling government interest.
guy: The same is true if an employer has a sincere religious objection to hiring Jews, or anyone else. Requiring him to hire them in spite of that religious objection would substantially burden his religious practices — but then the question will be whether the government can still justify the burden as necessary to serve a compelling government interest.
2. guy: There are perfectly good reasons to reject religious exemptions altogether, but the Religious Freedom Restoration Act mandated a limited religious exemption regime. For more on my views of the subject, see A Common-Law Model for Religious Exemptions.
3. guy: The test for substantial burden is generally whether the law mandates conduct that the objector believes is religiously wrong, or whether it forbids conduct that the objector believes is religiously required (or, in some religious exemption regimes, conduct that is religiously motivated). So the question is whether the objector sincerely believes that renting to people she believes to be living in sin is itself sinful (or otherwise religiously wrong). Not everyone who thinks premarital sex is sinful also thinks that renting to unmarried couples who engage in premarital sex is sinful. But Ms. Smith apparently so believed, and it isn’t for courts to decide whether her belief is reasonable or theologically sound. As the plurality correctly said,
June 12, 2010, 6:10 pmptt says:
Well, I think this all turns “religious freedom” on its head. But that’s just me.
Still, I’m stuck on the numbers question. Can a sincerely religious man refuse to rent to gay couples, unmarried heterosexuals, Jews, blacks, atheists, and other non-adherents of his particular, even peculiar, version of a religion when he owns 10 units? 100? 1000? 20000?
June 12, 2010, 6:42 pmEugene Volokh says:
ptt: If there’s a religious exemption regime in play, then quite possibly he can’t, if the government can show that denying the exemption is necessary to serve a compelling government interest. I discuss this in some more detail in the introductory sections of my A Common-Law Model for Religious Exemptions. But the reason would be the strength of the government interest, and the effect of granting an exemption on that interest. It should not be a denial that the law substantially burdens the person’s religious practices.
June 12, 2010, 6:54 pmptt says:
It should not be a denial that the law substantially burdens the person’s religious practices.
That turns the word “substantial” on its head. In a country where the actual religious ceremonies of some are ILLEGAL, in which individuals can be forced to personally violate long-recognized tenets of their faith, it is absurd to use the word “substantial” to refer to cases where the objectionable “sin” is done by a third party, in a commercially rented apartment possibly thousands of miles away.
June 12, 2010, 7:14 pmEugene Volokh says:
ptt: Lots of beliefs about sin are “absurd” to nonbelievers. Is it absurd to interpret a Biblical passage that forbids seething a young goat in its mother’s milk as a general prohibition on mixing meat and milk? Many think so, though this is how Orthodox Jews (and many in other streams of Judaism) have interpreted it. Yet secular American courts aren’t supposed to make such judgments. See, e.g., Thomas v. Review Bd..
Actually, defining when one’s conduct is wrongly complicit in others’ misbehavior is a difficult matter, on which different people can reasonably disagree. I don’t think it’s particularly absurd, for instance, to conclude that it’s immoral to rent one’s property to those who seem likely to use it for immoral behavior. But in any event religious exemption regimes aren’t limited to religious beliefs that seem reasonable to outsiders.
As to actual religious ceremonies (e.g., sacramental marijuana consumption) being illegal, that stems from a judgment (whether right or wrong) that denying religious exemptions for those ceremonies is the least restrictive means of serving a compelling government interest. It’s clear that laws banning such behavior are indeed substantial burdens on religious practice.
June 12, 2010, 7:34 pmptt says:
You really do seem to be ignoring what I am saying in favor of something someone else might say.
I’m well aware that there are “absurd” religious beliefs and, perhaps to your surprise, I would support people’s right to hold them and live their lives by them. What I said was “absurd”, however, is use the same word, “substantial”, to cover cases in which a millenia-old ceremony is prohibited and cases in which the rather novel concept of third- or fourth-level-removed “enabling” of sin is at work if a business owner objects to his tenants religious beliefs but has to rent to them anyway.
June 12, 2010, 9:38 pmptt says:
Ack! make that “tenants’ religious beliefs”
June 12, 2010, 9:47 pmDavid M. Nieporent says:
Well, what you’re apparently not “well aware of” is that whether something is a substantial burden on someone’s religious beliefs is not determined by whether you personally think something is a big deal, but rather whether their religious beliefs treat it as such. The fact that you think that “enabling of sin” is not “substantial” does not mean that other people don’t. Judaism would consider it lifnei iver, for example, and it’s one of the 613 commandments.
(I suspect your real quarrel here is with the notion that these things are sins at all, rather than with the notion that the landlord might view enabling them as substantial.)
June 12, 2010, 10:19 pmCornellian says:
However, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”
And a good thing too, since few religious beliefs could meet such a threshold.
June 12, 2010, 10:27 pmBarb says:
The lady is being required to accommodate sin with her duplexes –to provide housing and enter into a contract with people who are offending her God. She should have the right of refusal –especially since there are plenty of other options for renters. I noted on the Religious Exemption topic here that lawyers and gays will be targeting Christians to get their money with these suits that ought not be made.
Looks like Kagan was wrong (i.e. left) on ROTC–but right on the religious exemption issue.
Actually, I do think a Muslim should be able to fire someone who mocks Mohammad –but not for disbelieving him –not for witnessing about Christ –not for free speech that is courteous in tone–rather than mocking. Actually, I think he should be able to hire only Muslims if he wants.
June 13, 2010, 12:12 amOrenWithAnE says:
That’s the theory. In practice, the courts throw out plenty of religious exemption cases (e.g. Kozy Kitten, the perennial go-to case) because they find the putative religious motivation to be wanting (for whatever reason).
June 13, 2010, 1:23 am