Eugene's response moves me to reveal a secret heretical thought I have harbored for some time now-that the religion clauses (and much else in the constitution) were simply not written with anything like modern life in mind, that government has become so complex that the simple rules the founders lay down don't work, and we need something else. But I have not got a clue what that better thing might be--and I am certain that there is no social consensus on what that something might be. Marc Stern
-----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 12, 2004 12:02 PM To: Law & Religion issues for Law Academics Subject: "Religion of peace"? Marc makes a good point, but say that there is a dispute about whether the particular strain of, say, Islam -- or for that matter, Christianity -- to which the defendant has converted is a "religion of peace" or a religion that allows or even suggests violence that U.S. law would condemn. What evidence would the state and the defendant introduce? Statements of coreligionists? Religious experts who would testify about what they think the "real" meaning of the religion is (since we know that for most religions, there will be some people who can interpret it as countenancing violence)? Would we feel comfortable having juries resolve these questions? Indeed, prison officials do sometimes evaluate whether certain religious publications advocate violence. But I had thought that the prison cases have been seen as an unfortunate though necessary departure from traditional norms of government action. Would it be proper to extend them to death penalty sentencing phases, where a person's life would turn in part on a jury's evaluation of whether "a church advocates violence"? Eugene Marc Stern writes: So activity in amnesty international counts ,but not in a religious group? Why can't the state prove that a church advocates violence to rebut a mitigating showing of membership in the Church of Creator .Prison officials make that showing all the time both under RLUIPA and under O"'Lone and the Constituion.. The problem all around with religion Clause analysis in prisons (and other total institutions such as children's homes) is that the government exercise more power over every aspect of life than it can in "civilian" applications which no doubt were at the forefront of the framers minds. Marc Stern _____ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Friday, November 12, 2004 11:10 AM To: [EMAIL PROTECTED] Subject: Re: Evidence of religious conversion at a death penaltysentencinghearing But would the conversion to the World Church of the Creator (white supremacist religion in prison and on the web) also count? I think not, which means the courts cannot say that conversion to religion per se indicates good behavior. They need to stick to the objective facts of good behavior. The appeal to Christianity is an attempt to bring into the case mom and apple pie, but it can't be a legitimate criterion, under the rule against sect preferences in both Religion Clauses. Marci I assume that the point is not that Christianity has special status, but that the conversion to a system of religious belief is (or so a jury might find) indicative of a likelihood of redemption (in a secular sense) and htat the person need not be executed to protect society. I would imagine that the same would be true if a convict showed devotion to some secular equivalent. Under the court's cap[ital punishment rules ,post arrest conduct in jail-even after conviction and on retrial-- is relevant as a mitigating factor. _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
