RE: Institutional Capacity to Manage Exemptions

[Berg, Thomas C.]

If, as Marci says, legislatures “are better [than courts] at asking whether this particular accommodation has victims who need to be taken into account before it is granted,” would that also mean that legislative accommodations should not be struck down by courts on the ground that they impose costs on third parties?  In other words, Thornton v. Caldor (striking down the required day off for all religious worshipers) was wrongly decided, and likely Texas Monthly as well – and probably TWA v. Hardison too, since the Court there probably interpreted the Title VII religious-accommodation provision more narrowly than Congress intended, based on the Court’s concerns about the effect of accommodation on other employees.  Moreover, under the “trust the political body more than the courts” view, Zorach was correctly decided; the school board is in the best position to weigh the interests of religious students and nonreligious students concerning the availability of release time.  If the legislature is truly better at making these determinations, then courts also have to trust it when it choose to accommodate, even when there are arguable effects on third parties.  But if courts strike down these legislative accommodations while never declaring any constitutional accommodations, then the principle is not “let the legislature decide,” but rather “religious claims should lose no matter who decides.”     ----------------------- Thomas C. Berg Professor of Law Co-Director, Terrence J. Murphy Institute      for Catholic Thought, Law, and Public Policy University of St. Thomas School of Law MSL 400 -- 1000 La Salle Avenue Minneapolis, MN  55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 E-mail: [EMAIL PROTECTED] -------------------------------------------------------       -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Wednesday, March 09, 2005 10:00 AM To: religionlaw@lists.ucla.edu Subject: Re: Institutional Capacity to Manage Exemptions   I completely agree with Alan these issues are not black and white.  The question is the lesser of two evils in determining accommodation: the courts or the legislature. I think it is very hard to argue the courts are better suited to make such a determination than a legislature.  That is not to say legislatures always get it right. No governing system always gets it right.  But, on average, they are better at asking whether this particular accommodation has victims who need to be taken into account before it is granted.  The victims of religious conduct (whether they are individual or the general public good) are rarely at the table in a litigation.    You seem to make the point that in the arena of "fundamental rights," you are inclined to presume that the public good is coincident with the accommodation.  I used to think that as well, but I do not now.  There is no fundamental right to engage in religious conduct, because conduct has the inherent capacity to hurt others.  But let's just assume that religious conduct is a fundamental right; even so, there are often legitimate competing fundamental rights, like a child's right not to die for his or her parent's religious beliefs.  This country must move beyond this easy equation of accommodation and public good.  They are wholly distinctive and any accommodation granted without consideration of the public good holds the potential to harm others.   We will have to agree to disagree on how land use decisions are made.  Given the fact that public hearings are always required, it is hardly a bank teller scenario.  There are always multiple concerns and multiple factors, along with state and local land use law, not to mention sec. 1983.  The unfettered discretion that was attempted to be painted in the RLPA hearings underlying RLUIPA does not square with my experience in this arena.   Marci       To follow up on Doug's point, one of the problem's I have with Marci's arguments about judicial exemptions and legislative accommodations is that it sometimes appears as if Marci views religious groups seeking legislative accommodations or constitutionally mandated exemptions as self interested actors concerned only with their own well being while she views legislative and administrative bodies as principled seekers and defenders of the public good. Many of us see legislative and administrative decisions differently. These are often political responses to various self interested constituencies -- some of whose goals conflict with those of particular religious communities. Religious groups have learned to play that game because it is the only game in town -- and some have gotten pretty good at it. But not all religious groups have sufficient political capital in every community in which they live to protect their interests. Moreover, in many cases, there is no reason to think that a religious accommodation protecting a religious group's ability to practice its faith is less related to the public good than a decision to reject the accommodation in order to further the interests of other constituencies with conflicting interests. When fundamental rights are at stake, I, and others, are less inclined to accept this kind of political interest balancing without some judicial supervision. To use RLUIPA as an example, in the land use regulation process, in many disputes, there are often specific groups whose personal interests conflict with the development needs of a religious congregation. The resulting land use decision will often reflect a political evaluation of the competing interest groups more than it does a principled promotion of the public good. In the prison context, in California, an association representing state correctional officers is a major political player that often opposes religious accommodations in prisons. Government attention to this association's demands on many issues is at least as likely to be politically motivated as principled. I have a very close acquaintance who has spent 30 years working in local government in California. He describes local government this way. When a citizen seeks a discretionary decision from local government, he or she is treated very much like someone going to the local bank and asking for money. The bank typically wants to know two things. Have you deposited money in the bank that you can withdraw from your account? (What have you given to the bank?) Or, alternatively, if we give you money  (a loan), what will you do in the future for us (like paying back the loan with interest)? And in considering the latter inquiry, they will examine the customer's credit rating. What have you done for institutions that have loaned you money in the past? Politicians operate pretty much the same way. If you want them to decide an issue in your favor, they want to know what you have done politically that has benefited them -- then you can draw on the political capital you have developed in your account. Or, alternatively, they want to know what you can do in the future that will be politically helpful -- and a proven track record of delivering political goods is very helpful in establishing your political credit. I don't say that legislative and administrative bodies never act for the public good. Sometimes they do. But it is also the case that religious groups seeking accommodations often are willing to take into account the needs of third parties and will support a compromise that promotes the broader interests of the community. These issues are rarely entirely black and white.

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