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Marci, you write that "[a]ccommodation should be
measured according to whether the accommodation goes beyond fitting the
designated religious conduct, and moves into giving benefits to the religious to
get around the law even when not for religious purposes." But surely, in
the cases where you and I would probably agree that third-party harms
raise serious constitutional questions -- e.g., the vaccination exemptions,
Caldor and Hardison, the religious objector exemption to the
draft (before the Court broadly construed it to go beyond religious objection in
Seeger and Welsh), the child-welfare religious
exemptions -- the problem is not that the exempted parties are
using religion as a pretext to "get around" the law, is it? The problem,
instead, is that even (indeed, especially) where the religious claims to
exemption are entirely sincere and compelling, others must bear the
(significant) costs of accommodating those sincere religious objections,
right?
----- Original Message -----
Sent: Wednesday, March 16, 2005 7:26
AM
Subject: Re: Harm to others -- Please
don't forget accommodations
As I think I indicated early on, harm to third parties is the
central theme of my forthcoming book, God vs. the Gavel (Cambridge Univ
Press). It is also central to my article in the BYU Church Autonomy
symposium. You are absolutely right that the Free Exercise Clause does
not permit COURTS to engage in a harm inquiry. That is the
point of Smith and my extended defense of it in both works. Third party
harm is part of the public good analysis by the legislature. When courts
weighed public policy through strict scrutiny of neutral, generally applicable
laws, they typically focussed exclusively on the harm to the religious conduct
and failed to consider harm to third parties in any meaningful way. (the
one exception would be J. O'Connor in Smith). They did so in part
because they are institutionally incompetent to get to the larger public
issues. The thread focused on this in large part, beca! use I threw out
this thesis, which is frankly new in the Free Exercise dicourse.
With respect to the Establishment Clause, harm to third parties again is
more properly considered by the legislature than the courts.
Accommodation should be measured according to whether the accommodation goes
beyond fitting the designated religious conduct, and moves into giving
benefits to the religious to get around the law even when not for religious
purposes. For example, the peyote exemption is fine for religious
purposes, but strays into the EC when it's for recreational purposes.
This, of course, does not answer all questions re: accommodation, but it is my
view that it is the appropriate framework.
Marci -----Original Message----- From: Marty Lederman
<[EMAIL PROTECTED]> To: Law & Religion issues for Law
Academics <religionlaw@lists.ucla.edu> Sent: Wed, 16 Mar 2005
00:54:22 -0500 Subject: Harm to others -- Please don't forget
accommodations
I'm extremely heartened that my inquiry about the
measure of harm to others in Religion Clause doctrine has
spawned such a rich and interesting thread (or two). I'm still
absorbing many of the posts -- they're coming too fast and furious! -- but I
think it's fair to say this has been among our most fruitful of recent
threads. And I don't mean to sidetrack it, or to stymie it in any
way. But I think it's rather odd that the thread almost immediately
after my initial questions turned into a discussion about the role of
third-party harm in Free Exercise doctrine. "Odd" because, now
15 years after Smith, there isn't a whole lot of Free Exercise
doctrine in which third-party harm could be at all relevant. It's not
terribly important in the Lukumi/FOP v. Newark line of cases
involving discrimination against religion or lack of general
applicability. It doesn't re! ally play much of an express role
in the "ministerial exception" line of cases (although it could well explain
the courts' reluctance to extend that doctrine to its logical conclusion, as
in the sex-harassment cases). Of course, it does play a role in the one
remaining "precedent" establishing Free Exercise rights against laws that
genuinely are generally applicable -- namely, Yoder (compare
Prince) -- but how much generative power does that case
have?
The place in current doctrine where third-party
harm does play a very significant role -- as I indicated way back in
my original post -- is in the Establishment Clause cases dealing with
legislatively granted religious exemptions to generally applicable rules,
i.e., in "permissive accommodation" cases. There's no question that, in
determining whether such accommodations are constitutional, the Court has
often looked to the degree or type of burden imposed on other private
parties. (See, e.g., Thornton, Texas Monthly,
the conscription cases, Hardison, cf. the briefs in the upcoming
Cutter case -- although in other cases, the third-party harm
question mysteriuosly fades into the background (e.g., the majority opinions
in Amos and Zorach)). I believe the reason for this is
the notion that there is something offensive to the Religion Clauses
themselve! s to ask Private Party A to bear significant costs in the
service of Private Party B's religious beliefs. This notion is most
famously expressed in the "Three pence" and similar rhetoric from the
framers.
I'm still curious what folks think of this on the
Establishment Clause side of things, in the context of permissive
accommodations -- and, in particular, how we can distinguish unconstitutional
third-party harms (e.g., Thornton; Harlan's concurrence in
Walsh; I would add the religious exemptions to
compulsory vaccination and child-welfare statutes) from those harms
that the legislature may impose in the service of religious
accommodations (e.g., the waste of nonparticipating students' classroom time
in Zorach; Mr. Mayton's loss of his job of 16 years in
Amos).
But if everyone remains more interested in
extending the Free Exercise discussion, please, by all means don't let my
parallel question stand in the way.
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_______________________________________________
To post, send
message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change
options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note
that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
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