Paul Finkelman
Avi Schick wrote:
Professor Levinson Thank you for your clarifications. I still don't see the constitutional dimension that is so clearly visible to you and Professor Finkelman. I guess one way to get at the question is whether you think that the result in Yoder should have been different because of the conduct described in the Legal Affairs article?Or, how about the Kiryas Joel case. You contrast the Amish with "the Satmar Hasids, who most definitely are remarkably skilled politicians." Do you think that your opinion of the political streength of the Satmars is relecant to the decision in the Kiryas Joel case? In other words, if the school district was drawn in a way that benefitted Amish, who you believe are not political, do you think there is less of an establishment concern? In the end, aren't you just substituing your opinions, beliefs, biases, experiances, etc for those of another - such as C.J. Burger?[EMAIL PROTECTED] 1/2/2005 3:44:46 PM >>>-----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Avi Schick Avi Shick raises the following questions: I'm somewhat confused by your statement that "even if the article is off by 50% with regard to the actual number of young women who are raped or otherwise abused by their fathers and, especially, brothers, it nevertheless states a powerful claim." Any abuse of the sort recounted in the article is horrific, but the article doesn't attempt to quantify the abuse. The closest it comes is when it says" "no statistics are available, but according to one Amish counselor who works with troubled church members across the Midwest, sexual abuse of children is "almost a plague in some communities." Are these the "actual numbers" that your post refers to, or did I miss something? ___________________________________________ I was taking the term "almost a plague" as suggesting that the number is significant. I have no idea, and I don't think the author has any idea, what the "actual numbers" are. There is, of course, some risk that she is widely off the mark, as is often (but, alas, not always) the case with allegations of child abuse. I'm also interested in your belief that there is a constitutional dimension to the issue. To me, it appears that the problem stems from the Amish insularity from outside influences. While that insularity stems from a religious belief, it is not the concern of the state. Perhaps a decision to require Amish children to attend public high schools would act as a check on the abuse discussed on the article, by providing children with an outsider to report it to. On the other hand, the abuse discussed in the article began at an early age, and Amish children are in school through 8th grade. Besides, I imagine the amish would choose to send their children to Amish schools, not public schools. Perhaps prosecutors are less likely to take seriously an allegation of abuse coming from an Amish child. If that was so, the article certainly serves an important corrective purpose. Again, though, this is not a constitutional concern. After all, I suspect that allegations of abuse or other crimes against a tenured law professor might sometimes be treated differently than similar allegations against an immigrant with limited english language skills. ________________________________ I concur with almost everything that Paul Finkelman wrote in his posting. The "constitutional dimension" involves the irenic portrayal of the Amish in Yoder. Cases consist of "fact statements" (and assumptions, whether warranted or unwarranted, about the facts), together with the ostensibly legal conclusions that follow from them. When Burger distinguishes the (good) Amish from the (bad) hippy communities influenced by Thoreau, he is not, I think, merely stating that religious claims necessarily trump (which is patently false), but also telling the reader that the fine, law-abiding Amish are of no threat to the bourgeois values that he and his presumptive readers, at least in their idealized self-conceptions, cherish. Does anyone think that the case would have come out the same way if brough, say, by a group of "old-Mormon" polygamists? The article also mentions that some prosecutors are hesitant to prosecute Amish. I'm not sure if Amish vote (although I doubt it) _______________________ The Amish simply want to be left alone. I believe they view outside life as irredeemably corrupt and have no interest in participating in it in any way. This might, incidentally, be contrasted with the Satmar Hasids, who most definitely are remarkably skilled politicians. but even if they don't perhaps the motivation is (as the article explains) the desire to protect a lucrative (to the State) tourist industry. That too is a political problem, not a constitutional one. It explains why police conduct drug raids in inner city communities and not at Wall Street or Hollywood holiday parties where the drug laws are no doubt violated openly and disdainfully. _________________________ It all depends what one means by "constitutional problems." After all, one can take a "Law Day" view of "the rights Americans have," including citation to many inspiring Supreme Court opinions or, in contrast, look at the "law-in-action" and then try to ask why it is that so many ostensible constitutional rights are quite hollow. I.e., does a "constitution" really-and-truly "constitute," or does it, at times, serve as a kind of PR device by which elites profess commitments to values that they do not in fact intend to enforce across the board? Your post ends by noting that we know little about the Amish or hasidim and are reduced to arguing "whether the FE Clause gives them a pass from any genuine monitoring by the "external" legal order." I am certainly not as up on the caselaw as you are, but wonder which cases concern "genuine monitoring by the "external" legal order." Not the KJ cases or Yoder, which are education cases. Lukumi is closer, but it concerned the applicability of a particular law, not an exemption from "general monitoring" by the "legal order." ______________________________________________ Kiryal Joel probably is not a "monitoring" case. Yoder, I think, is much closer, insofar as one purpose (and, even more certainly, function) of public (or what Rick Duncan always calls "government") schools is to mold a citizen fit for participation in our particular kind of social order (for better and worse). Has there really been a Supreme Court case in the past several decades that seriously considered the question of exempting religious believers from the American legal system? _________________________ Full and complete exemption, certainly not. But I take it that the question of *some* level of exemption is what was behind RFRA (which I supported) and, therefore, Boerne. Sandy levinson _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu 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. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu 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.
-- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu 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.
