Any thoughts on how this analysis applies to Bob Jones
University, which was in fact required to change its religiosity -- or
at least to violate its felt religious obligations -- to fit the
government regulation? Or to the various landlords to whom marital
status housing discrimination law has been applied?
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> Lund, Christopher
> Sent: Thursday, March 10, 2005 6:44 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Institutional Capacity to Manage Exemptions
>
>
> I think Professor Brownstein's analogy between gay
> rights and free exercise is a very important one.
>
> Kenji Yoshino points out that having constitutional
> protections for status but not for conduct means that groups
> that can assimilate are forced to do so. And the pressure to
> assimilate takes many forms; Yoshino points out how gay
> people are encouraged "to convert, to pass, and to cover."
> Kenji Yoshino, Covering, 111 Yale L.J. 769, 774 (2002).
> (Though I'm being a little loose here, 'to pass' means
> essentially to lie about one's sexual identity, while 'to
> cover' means to downplay it.)
>
> The word "convert" should flag for us the obvious
> parallels between Yoshino's work and the law-and-religion
> context. So should the phrase "status but not conduct" as it
> is the rule of Employment Division v. Smith.
>
>
> It's just unavoidable that the Smith rule, without
> strong and frequent legislative protection for religious
> exemptions, will force religious observers to convert
> outright, to minimize their own religiosity, or to change it
> to fit the government regulation -- religious people will
> have "to convert, to pass and to cover." I find that lamentable.
>
> Chris Lund
>
> Christopher C. Lund
> Visiting Assistant Professor
> University of Houston Law Center
> 100 Law Center
> Houston, TX 77204-6060
> [EMAIL PROTECTED]
> (713) 743-2553 (direct)
> (713) 743-2122 (fax)
>
> -----Original Message-----
> From: A.E. Brownstein [mailto:[EMAIL PROTECTED]
> Sent: Thursday, March 10, 2005 6:12 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Institutional Capacity to Manage Exemptions
>
>
> >There are a variety of answers to this question -- about why
> religion
> >is
> >special and merits distinct constitutional consideration. I
> have written
> >about several of them -- as have many other list members.
>
> But let me add one answer that suggests something of an
> analogy between
> religious liberty and gay rights. My colleague, Tobias Wolff,
> in writing
> about gay rights, discusses a dynamic that he describes as
> "the denial of
> the homosexual possibility." What he means by this is that
> the arguments of
> some opponents of gay rights seem to be predicated on the
> idea that gay
> people and their relationships don't exist or that they will
> somehow stop
> existing (or being who they are) if only we do not adopt laws that
> recognize their presence in our communities and their humanity.
>
> I sometimes think a similar dynamic applies to religious
> identity, belief
> and practices -- what we might call "the denial of the religious
> possibility." The arguments of some opponents of religious
> exemptions and
> accommodations seem to be predicated on the idea that
> religious people will
> somehow stop existing (or being who they are, e.g., taking
> their religion
> seriously) if only we do not adopt laws that recognize their
> presence in
> our communities and their humanity.
>
> But, of course, both gay people and religious people do
> exist. Laws that
> ignore their existence do not change that reality -- any more
> than shutting
> one's eyes to the hardships such laws cause makes those
> hardships any less
> painful.
>
> Alan Brownstein
> UC Davis
>
>
>
>
>
>
> >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]
> >-----Original Message-----
> >From: [EMAIL PROTECTED]
> >[mailto:[EMAIL PROTECTED] On Behalf Of
> Scarberry, Mark
> >Sent: Wednesday, March 09, 2005 7:50 PM
> >To: 'Law & Religion issues for Law Academics'
> >Subject: RE: Institutional Capacity to Manage Exemptions
> >
> >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]
>
> _______________________________________________
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> _______________________________________________
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password,
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>
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_______________________________________________
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