See responses below. 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 West, Ellis
Sent: Fri 3/11/2005 11:51 AM
To: Law & Religion issues for Law Academics
Subject: RE: Institutional Capacity to Manage Exemptions
All that Doug and a few others did was to argue that if religious
persons/groups are not given such exemptions, they will be harmed in some,
presumably serious ways, e.g., they will be assimilated to some degree into the
larger society. This, however, goes without saying. Of course, they will be
harmed and/or assimilated.
But this is precisely the same harm they will suffer if government
suppresses their religion in some discriminatory way that all would agree is
barred by the Free Exercise Clause. For the Free Exercise Clause to accomplish
its purpose of ending the wars of religion and enabling persons of all faiths
to live together in peace in the same society, it must protect at least the
essentials of religious practice.
* * *
Prof. Brownstein said that religious persons/groups should get across-the-board
exemptions because persons, like you and me (?), who are opposed to such
exemptions are comparable to gay-bashers, i.e., they are out to eliminate
religion from society. Mercy! I will not dignify that with a response.
Well you should dignify it with a response, because I don't think you have
one. Marci is for forced assimilation, and you think she's too moderate. You
think it "goes without saying" that these people will harmed in "serious ways,"
and reject on principle any effort to ameliorate that harm, despite an express
constitutional provision that appears directed to such harm..
I think we regulate far too much, and I would do what I can to protect
other groups who are harmed in similar ways. I would interpret religion
broadly, as in Seeger and Welsh. But I would not refuse to enforce the
constitutional protection for one set of deep beliefs that is textually
protected because I cannot achieve perfectly equal protection for every other
victimized group or practice.
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 [EMAIL
PROTECTED]
Sent: Friday, March 11, 2005 8:20 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Institutional Capacity to Manage Exemptions
Ellis--- I'm not sure what you mean by across-the-board exemptions. If
laws like RFRA, they are illegitimate, but if they are tailored to particular
practices, and the public good does not suffer from the exemption, I think they
are crucial to the proper balance of liberty and order. The one thing a
society cannot do is wish away the intense power of religious belief in
people's lives, whether that government is the Soviet Union when it tried
unsuccessfully to destroy the Orthodox Church, China now trying to suppress
Falun Gong and Christianity, or our country. Religion is a given part of human
existence, and deserves to be given as much latitude as possible. Thus, the
question is not whether, but where to draw the line on exemptions. A mandatory
exemption system is inimical to the public good, especially those who are most
vulnerable. But an exemption that harms others is contrary to the scheme of
ordered liberty the Constitution constructs.
Marci
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?
<<winmail.dat>>
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