This is not responsive to
Tom's point. Why are the courts better than legislatures at balancing the
competing interests when the legislature is accused of going to far for
religion, but not when it is accused of not doing enough?
I would have the courts take a second look in both
cases, but if only the legislature is capable of balancing these interests, then
the courts should not take a second look in either case.
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
512-232-1341
512-471-6988 (fax)
From: [EMAIL PROTECTED] on
behalf of [EMAIL PROTECTED]
Sent: Wed 3/9/2005 2:57 PM
To:
religionlaw@lists.ucla.edu
Subject: Re: Institutional Capacity to
Manage Exemptions
By having
legislatures make the accommodation, I am not repealing the
Establishment Clause, which was the reason those cases came out the way they
did. The Smith decision is rather explicit that there is not an
unlimited right to accommodate. Where the accommodation is a bonus,
not narrowly tailored to lift the burden on the conduct, there would be a
strong EC argument.
Marci
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.”
|
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