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Prof
Scarberry, I'm not sure that I understand your first point below. If it
assumes that the majority's religion is being taught in the public schools, then
the law that authorizes that teaching is not a valid, secular law in the first
place, i.e., it is unconstitutional. As for your second
point, although I happen to think that my own religion is special, at least
to me, I don't think that all religions are special. Do you? If so,
why? Even if you do think that all religions are special, do you really
think that that is enough to justify government's granting religious
persons/groups across-the-board exemptions from valid, secular laws? Would
such an argument appeal to non-religious persons? If not, then isn't the
only justification you are giving for across-the-board religion-based
exemptions the fact that the majority of Americans are religious, favor such
exemptions, and have a right to get what they
want?
Ellis M. West
Political Science Department
University of Richmond, VA 23173
804-289-8536
[EMAIL PROTECTED]
One might ask, why
should those who object to the majority's views on religion alone be given
across-the-board exemptions from the majority's views taught to their children
in public schools? My third-grade daughter is subject to being taught about
all sorts of things that I might not like. (Not another unit on why we must
protect all rain forests ...)
I'm happy that there
is an Establishment Clause that has some bite. But then I also think the Free
Exercise Clause should have some bite. Religion is special; the state can't do
much to support it, and the state must provide some extra space for private
_expression_ of it.
Mark S.
Scarberry
Pepperdine University
School of Law
P.S. I'm not in favor of eradicating rain
forests, but I feel about them sort of the same way Mark Twain felt about
Michelangelo after Twain had been in Italy for a while.
-----Original
Message-----
From: West,
Ellis [mailto:[EMAIL PROTECTED]
Sent: Wednesday, March 09, 2005 2:40
PM
To: Law
& Religion issues for Law Academics
Subject: RE: Institutional Capacity to
Manage Exemptions
Although the issue
of whether legislatures or courts are better qualified or more likely to grant
religion-based exemptions is an interesting one, it is not the fundamental
one, which is: Why should religious persons/groups, and they alone, be
given across-the-board exemptions, whether by courts or legislatures, from
valid, secular laws? Of course, religious persons/groups, like other
person/groups, should be able to obtain from legislatures exemptions from
specific laws that impose undue hardships on them in some way or the
other. But why should they be granted across-the-board exemptions?
It won't do to say that the First Amendment requires such, because that is the
issue. Why should the First Amendment be interpreted to require
such? I don't think members of this list-serv have ever adequately
answered this question.
Ellis M. West
Political Science Department
University of Richmond, VA 23173
804-289-8536
[EMAIL PROTECTED]
-----Original
Message-----
From:
[EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Douglas
Laycock
Sent: Wednesday,
March 09, 2005 4:30 PM
To:
Law & Religion issues for Law Academics;
religionlaw@lists.ucla.edu
Subject: RE: Institutional Capacity to
Manage Exemptions
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.
University of
Texas Law School
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.
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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