The Volokh Conspiracy - "Specific Tenet of a Person's Religious Faith":

The Pennsylvania Religious Freedom Protection Act, 71 Penn Stats. §§ 2401 et seq., is pretty much a Religious Freedom Restoration Act, which mandates religious exemptions whenever a law substantially burdens a person's religious practice, unless applying the law to the person is narrowly tailored to a compelling government interest. But the law defines "substantial burden" -- which needs to be proved by "clear and convicing evidence" -- this way:

"Substantially burden." An agency action which does any of the following:
(1) Significantly constrains or inhibits conduct or expression mandated by a person's sincerely held religious beliefs.
(2) Significantly curtails a person's ability to express adherence to the person's religious faith.
(3) Denies a person a reasonable opportunity to engage in activities which are fundamental to the person's religion.
(4) Compels conduct or expression which violates a specific tenet of a person's religious faith.

But what does "specific tenet" mean, how does it differ from a nonspecific tenet, and can the specific tenet/nonspecific tenet distinction be applied without violating the Establishment Clause? The panel majority Combs v. Homer-Center School Dist. (3d Cir., decided last Thursday) leaves the state law question for state courts, concluding (correctly, I think) that there's no viable federal constitutional claim. But Judge Scirica's concurrence has an interesting discussion; I don't find it entirely persuasive, especially given the possible constitutional problems with this interpretation, but perhaps it's the best that can be done with the statutory language:

Parents rely exclusively upon the RFPA's fourth definition of “substantially burden” -- “an agency action which ... [c]ompels conduct or expression which violates a specific tenet of a person's religious faith.” Parents contend they are compelled, under threat of truancy charges, to submit the portfolio of their children's work product to the school districts for discretionary review. Parents describe the act of turning over the portfolio for discretionary review as “conduct or expression.” They point to the exercise of editorial judgment and creativity on the part of the home education supervisor as evidence of this expression. Moreover, Parents assert a “specific tenet” based upon certain religious beliefs.

First, Parents maintain their faith teaches that “education of their children, not merely the ‘religious education,’ is ‘religion.’” Parents cite, inter alia, Deuteronomy 6:5-7(NIV) (“Love the Lord your God with all your heart and with all your soul and with all your strength. These commandments that I give you today are to be upon your hearts. Impress them on your children. Talk about them when you sit at home and when you walk along the road, when you lie down and when you get up.”), Psalms 145:4(NIV) (“One generation will commend your works to another; they will tell of your mighty acts.”), Ephesians 6:4(NIV) (“Fathers, do not exasperate your children; instead, bring them up in the training and instruction of the Lord.”), and Proverbs 22:6 (“Train up a child in the way he should go and when he is old, he will not depart from it.”), for the proposition that God has directly called upon them to home educate their children.

Second, Parents contend God has assigned religious matters to the exclusive jurisdiction of the family, citing, inter alia, Luke 20:25 (“Then render to Caesar the things that are Caesar's, and to God the things that are God's.”), Pslams 127:3(NIV) (“Sons are a heritage from the Lord, children a reward from him.”), Matthew 7:6 (“Don't give what is holy to unholy people.”), 1 Corinthians 10:31 (“Whatever you do, do it all for the glory of God.”), 2 Timothy 2:15 (“Be diligent to present yourself approved to God.”), 1 Thessalonians 2:4 (“We are not trying to please men but God, who tests our hearts.”), and Acts 5:29 (“We must obey God rather than men.”). Parents contend Act 169 replaces the headship of Christ over the family, and their headship over their children, with the headship of the state over the family, citing, inter alia, 1 Corinthians 11:3(NIV) (“Now I want you to realize that the head of every man is Christ, and the head of the woman is man, and the head of Christ is God.”), Ephesians 5:23(NIV) (“For the husband is the head of the wife as Christ is the head of the church, his body, of which he is the Savior.”), and Ephesians 6:1(NIV) (“Children, obey your parents in the Lord, for this is right.”). As a result of this “specific tenet,” Parents assert a sincerely held religious belief that the school districts have no authority to compel reporting or to engage in discretionary review of their home education program.

The term “specific tenet” is not defined in the Religious Freedom Protection Act .... The Oxford English Dictionary defines “specific” as “precise or exact in respect of fulfilment, conditions, or terms; definite, explicit” and “exactly named or indicated, or capable of being so; precise, particular.” See also Merriam-Webster's Dictionary 1132 (9th ed.1990) (defining “specific” as “sharing or being those properties of something that allow it to be referred to a particular category” or as “free from ambiguity”). “Tenet” is defined as “[a] doctrine, dogma, principle, or opinion, in religion, philosophy, politics or the like, held by a school, sect, party, or person.” 2 Oxford English Dictionary 3260 (Compact ed.1971); see also Merriam-Webster's Dictionary 1215 (9th ed.1990) (defining “tenet” as “a principle, belief, or doctrine generally held to be true; especially: one held in common by members of an organization, group, movement, or profession”).

In the religious context, the term “specific tenet” is difficult to define.FN41 Even though a religious concept may be stated generally, it may, in the believer's mind, be a specific religious tenet. At one end of the spectrum, specificity may be relatively straightforward and easy to identify because the “specific tenet” is observed as an outward manifestation of a particular religious belief [for instance, a religious commandment to grow and wear a beard, a “prohibition against Saturday labor [that] is a basic tenet of the Seventh-day Adventist creed, based upon that religion's interpretation of the Holy Bible,” or religious dietary rules such as beliefs that one ought not aid others in the consumption of pork.]

At the other end of the spectrum are claims similar to Parents'. These claims cite more general and less obviously manifested concepts. This is not to undervalue these tenets which, as revelations, may be fundamental to one's religious beliefs. In these situations, however, it may be difficult to determine whether a litigant's citations to scripture or to general religious concepts articulate a “specific tenet.” Also problematic in this analysis are religious tenets that may be viewed as both general and specific. See, e.g., Exodus 20:7 (“Thou shalt not take the name of the LORD thy God in vain, for the LORD will not hold him guiltless that taketh his name in vain.”); Exodus 20:12 (“Honor thy father and thy mother that thy days may be long upon the land which the LORD thy God giveth thee.”).

Furthermore, the RFPA definition of “substantially burden” appears to create some tension between state and federal law. The United States Supreme Court has cautioned against making religious interpretations in the First Amendment context. “Repeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.” “It is no more appropriate for judges to determine the ‘centrality’ of religious beliefs before applying a ‘compelling interest’ test in the free exercise field, than it would be for them to determine the ‘importance’ of ideas before applying the ‘compelling interest’ test in the free speech field.” “Courts should not undertake to dissect religious beliefs ... because [the believer's] beliefs are not articulated with the clarity and precision that a more sophisticated person might employ.” “Courts are not arbiters of scriptural interpretation.” Additionally, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc to 2000cc-5, “does not permit a court to determine whether the belief or practice in question is ‘compelled by, or central to, a system of religious belief.’”

Nevertheless, the Pennsylvania General Assembly's statutory definition of “substantially burden” appears to require courts to inquire into, inter alia, whether an activity is fundamental to a person's religion or whether a person is compelled to violate a specific tenet of their religious faith. Arguably, a violation of a general tenet might substantially burden one's religious faith. But that was not what the Pennsylvania General Assembly proscribed. The statutory language shifts the burden of establishing a compelling interest and least restrictive means to the state actor only after the violation of a specific tenet, which must mean something different from a general tenet. As noted, the dilemma is especially striking because, in the view of the believer, the violation of a general tenet may very well substantially burden one's religious faith.

Nevertheless, given the normal usage of the term, it is difficult to see that Parents have cited a specific tenet that would prohibit reporting requirements and discretionary school district review of their children's educational progress. Instead, they reference general, but nonetheless important, religious tenets, see, e.g., Luke 20:25 (“Then render to Caesar the things that are Caesar's, and to God the things that are God's.”); 2 Timothy 2:15 (“Be diligent to present yourself approved to God.”), to assert that local school districts have no authority to conduct a limited review of their children's educational progress. In addition, under RFPA's fourth definition of “substantially burden,” a party must establish a nexus between the specific tenet and the compelled violation, a nexus that Parents have not established here.

Furthermore, the inconsistencies in Parents' complaints, depositions, briefs and appellate oral argument suggest the difficulty in identifying a specific tenet (as opposed to a general tenet) and its attendant consequences. In their complaints, briefs to the district court, and some deposition testimony, Parents asserted a “specific tenet” that the state “lacks the jurisdiction” over their children's education, i.e., that no level of state review would be permissible. [Footnote: Although it is not entirely clear, I understand Parents' argument to mean that the natural consequence of their asserted specific tenet is that the state has no jurisdiction over home-schooling.] But at oral argument, Parents implied that their asserted “tenet” might allow non-discretionary review of their home education programs. See also Parents Reply Br. at 8 (“Parents do not contend that the government may not establish any standards to govern home education. Rather, the Parents' core objection ... is that their religious beliefs forbid them from submitting their religious education of their children to the discretionary review of a governmental official.”). Yet it is problematic whether this interpretation of “non-discretionary” review would amount to any review at all.

Based upon the plain language of the RFPA, Parents have failed to prove by clear and convincing evidence that they have been compelled or will likely be compelled to violate a specific tenet of their religious faith. Accordingly, Parents cannot sustain their cause of action under the Pennsylvania RFPA.

See also the ACLU's amicus brief supporting the homeschoolers, cowritten by lawprof Christopher Lund, though that focuses on broader questions related to the definition of "substantial burden."

	[Eugene Volokh, August 25, 2008 at 7:29pm] Trackbacks "Specific Tenet of a Person's Religious Faith": The Pennsylvania Religious Freedom Protection Act, 71 Penn Stats. §§ 2401 et seq., is pretty much a Religious Freedom Restoration Act, which mandates religious exemptions whenever a law substantially burdens a person's religious practice, unless applying the law to the person is narrowly tailored to a compelling government interest. But the law defines "substantial burden" -- which needs to be proved by "clear and convicing evidence" -- this way: "Substantially burden." An agency action which does any of the following: (1) Significantly constrains or inhibits conduct or expression mandated by a person's sincerely held religious beliefs. (2) Significantly curtails a person's ability to express adherence to the person's religious faith. (3) Denies a person a reasonable opportunity to engage in activities which are fundamental to the person's religion. (4) Compels conduct or expression which violates a specific tenet of a person's religious faith. But what does "specific tenet" mean, how does it differ from a nonspecific tenet, and can the specific tenet/nonspecific tenet distinction be applied without violating the Establishment Clause? The panel majority Combs v. Homer-Center School Dist. (3d Cir., decided last Thursday) leaves the state law question for state courts, concluding (correctly, I think) that there's no viable federal constitutional claim. But Judge Scirica's concurrence has an interesting discussion; I don't find it entirely persuasive, especially given the possible constitutional problems with this interpretation, but perhaps it's the best that can be done with the statutory language: Parents rely exclusively upon the RFPA's fourth definition of “substantially burden” -- “an agency action which ... [c]ompels conduct or expression which violates a specific tenet of a person's religious faith.” Parents contend they are compelled, under threat of truancy charges, to submit the portfolio of their children's work product to the school districts for discretionary review. Parents describe the act of turning over the portfolio for discretionary review as “conduct or expression.” They point to the exercise of editorial judgment and creativity on the part of the home education supervisor as evidence of this expression. Moreover, Parents assert a “specific tenet” based upon certain religious beliefs. First, Parents maintain their faith teaches that “education of their children, not merely the ‘religious education,’ is ‘religion.’” Parents cite, inter alia, Deuteronomy 6:5-7(NIV) (“Love the Lord your God with all your heart and with all your soul and with all your strength. These commandments that I give you today are to be upon your hearts. Impress them on your children. Talk about them when you sit at home and when you walk along the road, when you lie down and when you get up.”), Psalms 145:4(NIV) (“One generation will commend your works to another; they will tell of your mighty acts.”), Ephesians 6:4(NIV) (“Fathers, do not exasperate your children; instead, bring them up in the training and instruction of the Lord.”), and Proverbs 22:6 (“Train up a child in the way he should go and when he is old, he will not depart from it.”), for the proposition that God has directly called upon them to home educate their children. Second, Parents contend God has assigned religious matters to the exclusive jurisdiction of the family, citing, inter alia, Luke 20:25 (“Then render to Caesar the things that are Caesar's, and to God the things that are God's.”), Pslams 127:3(NIV) (“Sons are a heritage from the Lord, children a reward from him.”), Matthew 7:6 (“Don't give what is holy to unholy people.”), 1 Corinthians 10:31 (“Whatever you do, do it all for the glory of God.”), 2 Timothy 2:15 (“Be diligent to present yourself approved to God.”), 1 Thessalonians 2:4 (“We are not trying to please men but God, who tests our hearts.”), and Acts 5:29 (“We must obey God rather than men.”). Parents contend Act 169 replaces the headship of Christ over the family, and their headship over their children, with the headship of the state over the family, citing, inter alia, 1 Corinthians 11:3(NIV) (“Now I want you to realize that the head of every man is Christ, and the head of the woman is man, and the head of Christ is God.”), Ephesians 5:23(NIV) (“For the husband is the head of the wife as Christ is the head of the church, his body, of which he is the Savior.”), and Ephesians 6:1(NIV) (“Children, obey your parents in the Lord, for this is right.”). As a result of this “specific tenet,” Parents assert a sincerely held religious belief that the school districts have no authority to compel reporting or to engage in discretionary review of their home education program. The term “specific tenet” is not defined in the Religious Freedom Protection Act .... The Oxford English Dictionary defines “specific” as “precise or exact in respect of fulfilment, conditions, or terms; definite, explicit” and “exactly named or indicated, or capable of being so; precise, particular.” See also Merriam-Webster's Dictionary 1132 (9th ed.1990) (defining “specific” as “sharing or being those properties of something that allow it to be referred to a particular category” or as “free from ambiguity”). “Tenet” is defined as “[a] doctrine, dogma, principle, or opinion, in religion, philosophy, politics or the like, held by a school, sect, party, or person.” 2 Oxford English Dictionary 3260 (Compact ed.1971); see also Merriam-Webster's Dictionary 1215 (9th ed.1990) (defining “tenet” as “a principle, belief, or doctrine generally held to be true; especially: one held in common by members of an organization, group, movement, or profession”). In the religious context, the term “specific tenet” is difficult to define.FN41 Even though a religious concept may be stated generally, it may, in the believer's mind, be a specific religious tenet. At one end of the spectrum, specificity may be relatively straightforward and easy to identify because the “specific tenet” is observed as an outward manifestation of a particular religious belief [for instance, a religious commandment to grow and wear a beard, a “prohibition against Saturday labor [that] is a basic tenet of the Seventh-day Adventist creed, based upon that religion's interpretation of the Holy Bible,” or religious dietary rules such as beliefs that one ought not aid others in the consumption of pork.] At the other end of the spectrum are claims similar to Parents'. These claims cite more general and less obviously manifested concepts. This is not to undervalue these tenets which, as revelations, may be fundamental to one's religious beliefs. In these situations, however, it may be difficult to determine whether a litigant's citations to scripture or to general religious concepts articulate a “specific tenet.” Also problematic in this analysis are religious tenets that may be viewed as both general and specific. See, e.g., Exodus 20:7 (“Thou shalt not take the name of the LORD thy God in vain, for the LORD will not hold him guiltless that taketh his name in vain.”); Exodus 20:12 (“Honor thy father and thy mother that thy days may be long upon the land which the LORD thy God giveth thee.”). Furthermore, the RFPA definition of “substantially burden” appears to create some tension between state and federal law. The United States Supreme Court has cautioned against making religious interpretations in the First Amendment context. “Repeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.” “It is no more appropriate for judges to determine the ‘centrality’ of religious beliefs before applying a ‘compelling interest’ test in the free exercise field, than it would be for them to determine the ‘importance’ of ideas before applying the ‘compelling interest’ test in the free speech field.” “Courts should not undertake to dissect religious beliefs ... because [the believer's] beliefs are not articulated with the clarity and precision that a more sophisticated person might employ.” “Courts are not arbiters of scriptural interpretation.” Additionally, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc to 2000cc-5, “does not permit a court to determine whether the belief or practice in question is ‘compelled by, or central to, a system of religious belief.’” Nevertheless, the Pennsylvania General Assembly's statutory definition of “substantially burden” appears to require courts to inquire into, inter alia, whether an activity is fundamental to a person's religion or whether a person is compelled to violate a specific tenet of their religious faith. Arguably, a violation of a general tenet might substantially burden one's religious faith. But that was not what the Pennsylvania General Assembly proscribed. The statutory language shifts the burden of establishing a compelling interest and least restrictive means to the state actor only after the violation of a specific tenet, which must mean something different from a general tenet. As noted, the dilemma is especially striking because, in the view of the believer, the violation of a general tenet may very well substantially burden one's religious faith. Nevertheless, given the normal usage of the term, it is difficult to see that Parents have cited a specific tenet that would prohibit reporting requirements and discretionary school district review of their children's educational progress. Instead, they reference general, but nonetheless important, religious tenets, see, e.g., Luke 20:25 (“Then render to Caesar the things that are Caesar's, and to God the things that are God's.”); 2 Timothy 2:15 (“Be diligent to present yourself approved to God.”), to assert that local school districts have no authority to conduct a limited review of their children's educational progress. In addition, under RFPA's fourth definition of “substantially burden,” a party must establish a nexus between the specific tenet and the compelled violation, a nexus that Parents have not established here. Furthermore, the inconsistencies in Parents' complaints, depositions, briefs and appellate oral argument suggest the difficulty in identifying a specific tenet (as opposed to a general tenet) and its attendant consequences. In their complaints, briefs to the district court, and some deposition testimony, Parents asserted a “specific tenet” that the state “lacks the jurisdiction” over their children's education, i.e., that no level of state review would be permissible. [Footnote: Although it is not entirely clear, I understand Parents' argument to mean that the natural consequence of their asserted specific tenet is that the state has no jurisdiction over home-schooling.] But at oral argument, Parents implied that their asserted “tenet” might allow non-discretionary review of their home education programs. See also Parents Reply Br. at 8 (“Parents do not contend that the government may not establish any standards to govern home education. Rather, the Parents' core objection ... is that their religious beliefs forbid them from submitting their religious education of their children to the discretionary review of a governmental official.”). Yet it is problematic whether this interpretation of “non-discretionary” review would amount to any review at all. Based upon the plain language of the RFPA, Parents have failed to prove by clear and convincing evidence that they have been compelled or will likely be compelled to violate a specific tenet of their religious faith. Accordingly, Parents cannot sustain their cause of action under the Pennsylvania RFPA. See also the ACLU's amicus brief supporting the homeschoolers, cowritten by lawprof Christopher Lund, though that focuses on broader questions related to the definition of "substantial burden."