Religious Accommodation in the American Workplace – Dr. Debbie Kaminer

now we have to have professor damodara commoner from the city university of new york and she'll talk about the religious accommodation in the American workplace why federal courts failed to provide meaningful protection of religious employees thank you very much thank you for having me I come at religion in a very different way than most people here do what my talk is on is really not on constitutional issues but rather on statutory interpretation and what I'm actually very interested in looking at is whether there are any unifying principles that can explain the legal systems treatment of religion in the American workplace and I look at this simply through the state laws as well as federal laws I love only at the federal law and the reason became interested in this at this point is at this israelian area of growing importance in the United States over the last 15 years a number of charges filed with the EEOC has doubled and sure as most of you know just last week the United States Supreme Court came down with its first case interpreting section 701 J which mandates religious accommodation since 1986 so it's section 701 day which is part of title 7 that you know large anti-discrimination legislation in the United States mandates is reasonable accommodation of an employee's religious conduct if accommodation can be made without undue hardship so my definition that sounds as if it is requiring some type of differential or preferential treatment that more than simply neutrality is required okay that's what it sounds like right just based on the words so I look at is that look through the case law and see well are there any kind of unifying principles that could explain how the legal system has dealt with section 701 J and the first unifying principle is formal equality now the fact that kourt's rely on formal equality in employment discrimination cases should not be surprising except for the fact that by definition 701 J mandates accommodation right so it's a little bit odd that you have a statute mandating accommodation and yet courts are unable to get out of the sort of formal equality framework the other thing which i think is interesting is that there are times the formal equality would be sufficient to address a claim for a little accommodation so imagine you have employees where they each get six weeks of paid vacation days and you have one employee who needs two days off religious holidays formal equality in the case like that might be sufficient the issue though is the courts really don't distinguish between cases where formal equality is sufficient and more formal equality is not sufficient the second sort of unifying factor that I think exists in these cases is that courts tend to view religion as mutable now the whole issue that courts in the United States for the most part only provide protection in the employment discrimination context two immutable characteristics and not immutable characteristics again that should not be surprising except for the fact that by definition section 701 J explicitly collapse the conduct status distinction right so therefore it shouldn't matter whether or not religion is something which is mutable or is immutable because those convict status distinction has been collapse now what's interesting is that secularists for the most part you know when you look at these types of cases tend to view religion is something which is simply a matter of choice something which people can change and something which people do change and most of you I'm sure familiar with the new Pew study that came out that I think it's between 34 and forty-two percent of american adults have a different religious affiliation than that in which they were raised which i think is just very interesting when you think about the whole idea of mutability that it sort of gives way to the secularists who say well religion is just something beautiful what's interesting is there are some course which say okay yes religion is something that you can change but yet it is so fundamental to your identity you should not change it then this sort of third unifying factor which is a little bit of a I guess a little bit of a cop-out is really a lack of you today and what I mean by that is that there are courts which express skepticism towards religion and skepticism towards religious beliefs in a way they don't express skepticism to other types of ideological beliefs and when you read through some of these decisions you get the sense of skepticism towards religion by some of the courts not by all that you simply do not get in other types of religious claims so then the result of these three unifying factors is both minimal protection but also inconsistent protection very briefly i want to discuss the three supreme court cases um lower court cases some of the ways they focused on formal equality some of the ways they have focused on whether religion is mutable or immutable and then finally I want to mention the line of cases which are the union dues cases because I think those cases the best short sort of show the skepticism now the seminal one JAY as I mentioned it by definition requires more than formal equality and just two points I want to make is at first it explicitly overturned court cases that had required only neutrality so by definition right when Congress enacted section 701 J the legislative history said we are overturning these cases that are saying only neutrality is required the second interesting aspect of legislative history is that it had made clear that undue hardship was a meaningful expense and yet courts for the most part including the Supreme Court have tended to ignored both of these aspects of section 7 or lunch I hear there are only three supreme court cases as I mentioned that I have been an ink recent lower court cases there was a Supreme Court case I have a parondi which came down last week but they've only been three supreme court cases just to give you a little bit of the history on the cases first case from 1977 stands for the proposition that undue hardship is any cost greater than de minimis now if you think of a sort of dictionary definition of undue hardship it's sort of hard to think of undue hardship is meaning just the minimal cost Alex interesting in the United States is to digress for a minute is that when the American with Disabilities Act was passed and the American Disabilities Act is the same framework of reasonable accommodation unless it's an undue hardship Congress actually said specifically that they do not want undue hardship defined as any cost greater than de minimis they want to defined as a significant de meaningful expense which this sort of gives a little more way to the whole idea that it really should mean a more meaningful type of expense so really when you think about the fact that any cost is going to be an undue hardship what you're requiring is almost only formal equality EEOC responded in 1980 a number of different ways to on TWA versus Hardison I'm not going to mention all the ways in which you know not surprisingly the EEOC's goal is to protect the religious employees but one of the things which is very interesting is that the EEOC broadly defined religion to include more than organized institutional religion so the whole idea that you shouldn't have to show that you're following all the tenants of your faith that you follow an organized institutional religion and the rationale in these cases was to protect religious employees but it has really had sort of the opposite effect and I think part of the reason is because when courts view almost any type of belief you know miss a at the summary judgment stage is not appropriate to determine whether or not something is a religion everything is a religion they're a little nervous about opening up the floodgates so almost everyone has standing as being a religious employee but yeah almost nobody ends up being accommodated this I'm going to mention is the second is an issue in abercrombie and I think this broad definition of religion is going to be more important because as I'm sure most of you realize you know based on the most recent Pew study the United States has become increasingly religiously diverse the Supreme Court second case 1986 case involving an employee who miss worked for six holy days what I think is interesting about this case is that this case is the first Supreme Court case that really sort of hits on all the issues formal equality immutability and also sort of the skepticism now the main Holy of this case had been once an employer reasonably accommodates a religious employee the employer does not need to look at the employees preferred accommodation so if you have an employer and the employer can accommodate the employee in a number of different ways so long as the religious conflict is removed even if the employee incurs costs in being accommodated that is not problematic and the employees preferred accommodation even if there's no hardship to the employer does not need to be considered and the language of the court was quite interesting because the court specifically expressed concern that an employee would hold out for the best accommodation and when you think about that that is the type language that somebody doesn't just want their conflict removed but somehow they are trying to sort of work the system for their benefit the next thing which is sort of interesting is that the court held that the accommodation does have to fully eliminate the conflict between the work requirements and the religious conflict so imagine a sabbatarian they cannot work on their Sabbath it would not under and Sonia the way I read Antonia it would not be reasonable to give that employee half of their Sabbath saw you would have to give them all of their Sabbath soft and the court what's interesting is you can think those sort of the immutability is being like an axis or the first something you can't change or you can think of that almost as even if it's something you can't change you shouldn't have to change its fundamental to your identity and the court in this case actually you can sort of you it that they were thinking of religion is being immutable to the extent even if you can't change it you shouldn't have to change it and what's interesting here is their lower courts that fully ignore this and say that a religious employee has to compromise on their religion and then finally the court focused on formal equality and the whole idea that you do not have to treat a religious employee better but you can't treat the Moores so for example in the case of insomnia the employee got on paid leave and what the court said was an unpaid leave is not reasonable if everyone else gets paid leave and only the religious employee gets unpaid so neutrality really means you have to treat everybody equally not better and not worse most recent case I'm going to discuss breathe that they came down last week and that actually is sort of changing my thinking a little bit about this paper and I'm going to need to you know take some time to sort of think about what this decision means for the paper because this is by far the most Pro religious employee decision the United States Supreme Court has come down with and in a nutshell what happened in this case is there was a Muslim employee and she applied for a job at Abercrombie and some of you may know Abercrombie it's a clothing store it has sort of a collegiate prep you feel to it and they have what is known as a lock policy and so they view their employees as models that part of the way they do their advertising and they're selling is the in-store experience and the look policy had a neutral rule no caps so that meant that nobody could wear any kind of head covering at all this woman comes to the job interview wearing a hijab she did not say I am wearing this for religious reasons the interviewer correctly assumed she was wearing it for religious reasons she assumed the interviewer knew she was wearing it for religious reasons she did not get the job specifically because the company did not want to accommodate her and in the specific case the Tenth Circuit didn't even address whether or not she needed to be accommodated because what the Tenth Circuit said is she was unable to establish even a prima facie case of religious discrimination because you need is she needed to have given express explicit direct notice that she needed the accommodation right so simply coming into the hijab was not enough if she didn't give explicit notice and what I thought was so interesting with a tenth circuit's decision is that they relied on the EEOC guidelines defining religion broadly against the religious employee right so usually the broad definition of religion if you think about that it is to protect employees whose religions are not traditional religions who don't follow all the tenants of their religion in this case with the Tenth Circuit had said is because religion is uniquely personal and individual unless somebody explicitly says I am wearing this religious garb for religious reason how do you know it's even for religious reason which I think shows sort of this bizarre hostility toward religion you know and its really very counterintuitive and ignoring with the facts on the ground were majority decision by Justice Scalia 81 decision all the Holy dorota concurrence reversed and remanded and what the supreme court said is that there is no knowledge requirement and the supreme court said that an employer who acts with the motive and the important point was motive not knowledge if an employer acts with a motive of avoiding accommodation they may violate Title 7 even if he has no more than an unsubstantiated suspicion that accommodation would be needed so if you think accommodation might be needed and that is why you are not hiring the person that alone would be enough not that the employee wins on you know substantively but they've established their prime facie case what I also think one of the most interesting aspects of this decision is is that the Supreme Court for the first time explicitly stated that more than formal equality is required and the supreme court wrote the title seven requires more than mere neutrality with regard to religious practices it gives religious employees favorite treatment and in justice Thomas's descending a king in he said this is not what we have said in the past and I think Justice Thomas is right that is not what the court has said in the past but this is sort of like a little bit of a shift in the framework in terms of like really emphasizing more the neutrality is required what I do next in the paper is I look at the formal equality mutability of skepticism formal equality there are many many ways it comes out in the lower court cases it comes out both in terms of what is a reasonable accommodation as well as when there is undue hardship so for example courts upheld of voluntary shift swaps giving an employee the right to on their own without helping the employer shift swaps is in general a reasonable accommodation all employees can shift swap shifts what the religious employer you do that essentially it's no accommodation and what's interesting here the whole idea that courts don't look at one formal equality is enough and when it's not enough is that this is the rule regardless of whether or not an employee is willing or able to swap shifts courts have also held that use the vacationer on paid leave is generally a reasonable accommodation everybody can get time off you know religious time off religious reasons there's no different than getting time off to go to the beach again no more than formal equality is required formal equality also comes up with undue hardship and there are a whole bunch of situations where there's almost a per se rule that no accommodation is needed so for example employers don't need to violate statutes or regulations they don't need to accommodate in a way that leads to health and safety concerns they don't need to incur economic and efficiency costs and we're some of these I think are really pretty much right to ask an employer to violate a statute or to ask an employer to permit an accommodation it leads to a real health or safety concern could be an undue hardship it's a little strange that employees can be required to take unpaid leave or incur costs but employers who have the deeper pockets are generally not required to have any kind of economic costs and accommodating one for more interesting areas that think with the whole idea of formal equality is that sometimes when you accommodate a religious employee the cost isn't to the employer as much as the cost is to the religious employees colleagues and when it comes to an impact on colleagues there is a real lack of consensus is to win an imposition rises to the level of being a nun Archer there are some courts fourth fifth and eighth circuits which have said that if a religious employees colleagues complain about an accommodation that alone is sufficient to constitute an undue hardship and we will not look at whether or not the complaints are valid other circuit six the Ninth Circuit's actually look at whether the complaints are valid and only mandate or only forbid accommodations or say it's okay you don't need to accommodate there's none to hardship in cases where these employee complaints are valid and there are two cases which are you know come from such different angles that I think it's pretty interesting as a Fourth Circuit case where a religious employee conant works on shifts his colleagues offered to cover for him they volunteered to cover and the employer said 'no the employer said you might not feel imposed upon now but you may change your mind accommodating would be an undue hardship and the court agreed with the employer accommodation was not required despite the fact the colleagues were volunteering on the other hand there is a Sixth Circuit case where the religious employees colleagues said if we have to cover for him we're quitting we will quit and the court said it doesn't matter you still need to accommodate that not they're not really going to quit this is just mere grumbling and I think these kinds of cases really sort of show the different approaches to religion almost a different respect that courts have for religion sort of the second unifying principle is the whole idea that in general courts only man day or courts only prohibit discrimination against what are known as immutable characteristics and not beautiful character six and one of the areas where this comes up is whether or not it is reasonable to expect and employee to compromise on his religious beliefs and if you think about it when you are telling an employee they must compromise on their beliefs even if you don't use the word choice you are telling them that this is something that they can choose to do or not to do now the Supreme Court had said that an accommodation is only reasonable if it eliminates the conflict that you cannot reasonably expect an employee to compromise on their religious beliefs second seventh and ninth circuit's follow this the fourth and eighth circuits have actually said it is unreasonable for a religious employee to expectable accommodation even if there's no undue hardship to the employer you both have to work together you can for example in one case expect some of your Sabbath soft it's not reasonable to expect all of them off and this is irrelevant of whether or not there's not do hardship that's simply it's reasonable to expect a religious employee to compromise which is really dealing with a whole issue of mutability the whole question of choice not surprised in this Michael mention with Muslim employees comes up when you have religious employees who are not following sort of what we view as the dominant religious traditions in the country religious employees who don't follow all of the tenants of their religion if you don't follow mainstream religious dogma and courts of these cases do give lip service to the EEOC guidelines they do say it's not appropriate at the summary judgment stage to determine whether or not the employee has since dearly held religious belief and then the courts end up using language that expresses skepticism towards religion so for example there's language that simply says religion as a matter of personal choice the employee can change it they should change it so for example this one case seventh-day Adventists you had a religious objection to joining a union tens of seventh-day Adventists faith include that you should not be divorced you shouldn't take it off before notary because he was divorced Lee took an oath before a notary the court essentially held while he's picking and choosing which parts of his religion to follow and therefore it's not a sincerely held religious belief ignoring the fact you considered sincerely hope some of the tenants of your faith about all of them this also not surprisin is an issue in our religious beliefs change over time you have an employee who's you know started off not observant they become a strict sabbatarian in these types of cases what courts tend to find is it's a matter of choice you weren't religious now you weren't religious you're sort of just making it up so this whole sort of view immutability continues to come in and then the line of cases which I think showed sort of the most skepticism towards religion are what are known as the union dues cases now there are individuals who for religious reasons have a religious objection to pay union dues and there is a unanimous rule in the United States by every circuit which is considered this that if an employee has a religious objection to paying their union dues they can instead make a mandatory substitute charitable contribution to a charity of their choice and in these cases courts actually talk about the fact the religious employee is not seeking something from nothing they're not a free rider of course implying that in other cases a religious employee is a free rider and is seeking something for nothing it also fully ignores the fact fact that the union wants to get its tues right the union's not getting any money the money is going to a charity and yet courts hold us to be a reasonable accommodation now there have been cases where religious employees have a religious objection both to paying the union dues and to making the mandatory voluntary contribution and in these cases what the courts say is no look wonderful I'll comment exactly and what's interesting is support in these cases talk again about the fact well they're just Free Riders and it looks so interesting is that the courts totally ignore the fact they talk about you know general obligations to society the Union doesn't care about an obligation to society right what does Union love you you wanted stews but as long as the court is not skeptical because there's no financial incentive then the court will mandate accommodation and then finally what with the Union use cases which I think really sort of our nails the point about the fact that it sort of shows the skepticism towards religion is that religious objectors are treated worse than employees who have an ideological or sort of a First Amendment objection to paying union dues so based on the Supreme Court case these people sometimes known as back objectors where they are objecting to painting the ideological portion of the fee you know the portion of the fee that supports ideological clauses but they're willing to pay the representation faith these back objectors not the religious objectives people with ideological non religious objections pay only part of the union fees the representation fee they don't pay the ideological fee and there has been no requirement by any court that the ideological fee has to be paid to charity instead so recently there were some court cases where what happened was religious objectors said we are being treated worse than that objectors we want to pay only the representation fee to charity it's not fair we have pay the full amount and what courts of these cases said is that now we can't let you pay only the ideological portion since this would be a financial incentive for employees to complain religious objections so there is a sort of skepticism and concern that a religious objector is going to be taking advantage of the system in a way that there is not a similar concern that an ideological objector will be taking advantage of the system and so I think those are sort of the themes that can best explain what's going on with religion in the workplace what I think is going to be very very interesting is to see what impact if any not with the knowledge requirement the Supreme Court's decision has but for the first time with stating that more than 40 quality is required thank you very much thank you again very interesting and many questions so let's open up maybe if I just pick up on the last punch great they're equal to total shipping requires dated treatment was the language he quoted me and I thought that was interesting because there's different ways you can conceive of accommodation it's simply something more substantive motion quality maybe or or else favoring but when they say beggar treatment they essentially just meaning accommodation beyond formal equality or is this and is that and if that's what they say is that dictator in this case hope it is dekhta it has lived in this case um I think that they are saying more than formal equality because the dissent explicitly was said this is not what we have ever said before well we have said in the past and didn't quote some I didn't put some of the language is language along the lines of discrimination is prescribed whether it's at the majority or versus whether it's at the minority and here for the first time it seems that what the court is saying and again this is what it seems to me is that simply formal equality is not enough in all cases and that there are examples that you need some more like substantive type of equality but it is dicta it's just such a sharp contrast to what's happened in the past maybe if I can ask just a few the pew guy studies you quoted at the beginning you might not have not drilled down to this level so I just wondered whether it was thirty to forty percent nothing center marionette adults have shifted their religion suspect and I just and I just wanted to shift it to what so you know I don't have to study with me right now it was um some 2008 study who was the breach never say she the one that just came out last month okay it was depending on whether you view Protestantism as just like shifting with in Protestantism versus shifting out of promise and as a mall together that's where the difference is either thirty-four percent or forty two percent um so you know based on that if you know ABS as long as you still Protestant it would be thirty-four percent some have shifted in terms of not having any religious affiliation some have shifted in terms of the different religious affiliation so it covers a whole broad spectrum but that's why I was being very channel there but he's a 34 or I think it was 40 41 or 42 just on that point did I hear you and maybe it was your tone it's not specifically saying this but are you are you saying that there should be recognition a certain range of you ability that people's beliefs can of all over time or the conversion can be a process absolutely and I think that that I think the issue should be whether or not somebody has a sincerely held religious belief at that point i think what their beliefs had been in the past is absolutely irrelevant because if that wasn't the case what you're essentially saying is again either 34 forty-two percent of american adults would have no right to religious accommodation because they have a different religious view but i also think with the whole issue of immutability i think it shouldn't be an issue at all i think once you have collapsed the conduct status distinction it should just be taken off the table all together the only yeah it's the fact it even comes up i think is a little bizarre and the fact the whole idea of choice even comes off as a little bit bizarre is that a term about an American continent state is distinctive everything well the fact that ok what's the way what does it what does it mean ok the way 701 che was amended was that this 701 say it's in the definition of religion so you're in terms of conic status distinction your status as a religious individual include somebody who needs an accommodation you see what I'm saying so it's like there's no different the definition of religion furcifer under title seven includes it's a little bizarre the way it's actually drafted in but the actual definition of religion includes the need for you know accommodation of your religious conduct so if you think about something libraries and discrimination you simply can't discriminate against somebody and you have to leaving aside the whole issue of affirmative action you can't refuse to hire somebody because they're black you care if you start somebody because they're asian in a racial discrimination but with religion the whole definition of religion is you can't refuse to you know hire somebody to treat them differently either because they dress you know because they have certain beliefs as well as the dreaming and the contact associated with those believers I want to ask you showed up distinctions between dinner Sergei's I want to ask if you think that's a reflection of the geographic locations that the circuits rated or else that distinction I think it is a difference between the geographic locations i think that's often an issue i think also in the united states there is a real um the many courts tend to be very employer friendly and when the conflict is between employees and government the courts might I'm sorry the conference between individuals and government the course might be a little bit more concerned with the individual rights but when its individual versus employer the courts are much more concerned with the employer rights because if you think about like the Tenth Circuit and I know it's a very different case you know you're not dealing with referee killing with Title 7 but the Tenth Circuit was the circuit that decided hobby lobby so they are very and again I understand to some extent it's comparing apples and oranges but they're very favorable to a religious corporation and yet very unfavorable to a religious employee so I also and this is something I may end up at again sort of this um I think part of it is not even religion specific it's almost an anti employee attitude in the United States I have two questions where is the what extent is the size big minority of small minority influencing the right combination okay I place okay in the second row and what extent can you make as we cover the rules on accommodation in working place to other programs of accommodation like the schooling electron dates and so on so on okay well to answer your second question first it's a totally different statute so I just I don't know enough about that to be able to really have any kind of an intelligent answer to it in terms of your first question um I think courts and to be particularly skeptical of religious beliefs that they view as unusual religious beliefs that are in the minority so for example there was one woman she claims she was a member of the church of body modification she wanted to work at cosco and she had multiple facial piercings so first the court says you know what the summary judgment stage it's not appropriate to determine whether or not this is a religion and then spends three pages talking about the fact that you know we don't really think it is a religion sue me yes I'd like to make a more general comment regarding both presentation interventions the impression I party that better when we're meets people fact the accommodation of the exactions the idea is that right well not the best option that is at this stage that that not know a single religious the face to the stick only to the government interested but it is seen them has said he that forbidden land and so to stay to shoot me or not or etiology and at least I can understand that but also history and the sociology and everything else in the sense a traitor in that no way the state could see for the Jubilee smirk circumcision is more important than having a separate pavement suffered men and women because of this assessment that should be done just by the faithful I wonder whether this approach is the correct one I wonder where are we are not the teaching of an extremely positive attitude cutting out low from everything else from history from how people only and the second that I wonder whether there is not a presumption behind this attitude that religion can be understood only by the faithful but everybody who is not part of the community can't understand what religion is this is a pushing things too far we are a mere running getting to a lot of dangers as itself Robbie 1930 suppose that was as a comment coming out from whom I thank my to respond abduction jumped ok ok Thank You Sylvia today for one source up a book i read boy francisco rufin from religious liberties he was making the question talking about religious equality of churches and institutions that you to compare the catholic church and state of italy with other denominations and Lawrence's and think that the other ones must have absolutely the same level of whatever for predictions livin is just to be hostage to a very abstract version of a quality that takes down the stream tradition so this is this case came from the loud sensation again some of us you know thank you that point but my question is does it get it Debbie yes we did you clashes in the cases but between maybe like that official but what if you got a for-profit closely held corporation with religious items okay and you've got a religious employee who assists they want some accommodation and in the religious employ floors do they they do not deserve it or whatever kind they always the Holy once it's been quite lovely beginning there are several exceptions for religious I mean you've done you've got a flesh of you get pleasure off to feed all those that you've got rougher placing with titles even title seven there exceptions for religious organizations I mean title seven opposite i just wonder what Shields to work towards the interplay visible take the completion between these two pieces of legislation am I sitting at the pleasure is not i think the class for the most part is is not there because title seven it does not apply to religious organizations so 80 title seven is not going to tell you that you know a temperature to choose charity has to guard that was the full profit closely held corporation up how closely health is title seven you need at least 15 employees dejar yeah yes in the Hobby Lobby music there's a case in the early days where the court either a couple concurrences talking about the for-profit piece of it and ate it include the court has issued a decision as to what extent it's it's a bizarre case because it's an Establishment Clause question that backs into some of these issues i guess i love this on cases who doesn't look bizarre cases um can I go back to those point for a little bit so I want to I want to make a hard distinction between history and sociology and religion and I am going to do it in the following way with a bizarre case so there's a new jersey case 2009 abdul huckabee jewish press and it's related to the topic we've discussed already so you have a husband it's all good cases start I guess with up with a husband the husband says husband is the middle of the divorce proceedings with his wife before a rabinovitch court he is also a high-risk obstetrics doctor and his area of expertise he's Jewish and his area of expertise is high-risk obstetrics for Orthodox Jewish women it's his clientele one day his wife calls up a local Jewish newspaper and says my husband has refused to give me a Jewish divorce and you Jewish newspaper I know you published the names of such evil husbands you should list his name their newspaper calls up the rabbinical court and says is it true and we're binnacle court says yes it's true and the answer actually was no it's not true they made a mistake the person he called just made a mistake they list him on the list it's false and he loses all his clients and he's not happy right that's cost him about a half a million dollars a year so he sues the newspaper for defamation as well he should okay so now we have a little bit of a question should he be able to sue for defamation so this is one of the rare religious defamation cases where there's no question as to whether or not the claim at stake is true or false that creates us down from class problems everyone agrees the statement the newspaper published false now the question is can he kenken his claim for defamation survive the court says no the reason the court says this claim can survive is because it can't figure out to what extent publication of this fact impacted his business because how does the court know you know how his clientele are responding based on this publication I think that's a huge mistake when the court does that I think it's craziness it's a sociological question at this point you just need to pull his clientele and try to determine how they perceive this type of conduct and to what extent it would mean that they be unwilling to use them as a doctor that sociology and I feel kind of somewhat similarly about history what I'm objecting to to be crystal clear this is again what I said to mark before it's very different for a court to engage in history and sociology than it is for the government to pass a law and then to determine who gets an exemption from the law based on what the government thinks is a substantial or in substantial burden that's the government setting up a typology of religion that has theological origins and dispensing burdens to its citizens on the basis of its own theological claims that to me you're shaking your head no but what am I going to do this is what I believe that it strikes at the very heart of the Establishment Clause if we were trying to distill some core objections of the United States Establishment Clause it's for the government to say on the basis of religious belief or affiliation who gets burdened by a law and who doesn't that's what I'm objecting to not the sociological religious inquiries or historical religious inquiries then you know qua history or sociology but the allocation of burdens on the basis of government assessment of religion associate and theology I think we will continue this discussion of coffee okay okay much better thank you right

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