It actually goes on quite a ways from there . . .
----- Original Message -----
Sent: Friday, March 18, 2005 5:36
AM
Subject: Re: Harm to others -- Please
don't forget accommodations
Bobby: Agreed!
I would note in this regard, however, that however the difficult cases
might be decided, even as eloquent a proponent of permissive accommdation as
Michael McConnell conceded (60 G.W. L. Rev. 685) that certain tangible "harms"
to third parties could render an exemption unconstitutional. For
example, as to Zorach itself, McConnell acknowledged that if there
were a "wasted hour" for the students left behind (as Chip Lupu had described
his own experience in the New York State schools), then the release-time
program would have been invalid: "Zorach is a difficult
case because the opinion does not provide sufficient information about the
activities in which the nonparticipating students were engaged. In my opinion,
a released time program of the sort Professor Lupu experienced as a child, in
which the nonparticipating students were inflicted with 'an entirely wasted
hour of school,' Lupu, supra note 6, at 744, would be unconstitutional."
McConnell went on to argue that the types of third-party harms that should
"count" for Religion Clause purposes are those that could induce the third
parties to alter their own (real or feigned) religious beliefs, conduct or
affiliation. I'm not sure I agree that the inqiury should be so limited;
but that's one very interesting perspective on your question.
FWIW, we had a somewhat interesting list-thread on the problem back on
February 16-20, dealing specifically with contemporary release-time
programs.
P.S. I would respectfully suggest that then-Professor McConnell
erred in suggesting that the opinion in Zorach itself "does not
provide sufficient information about the activities in which the
nonparticipating students were engaged" to enable us to determine whether the
program was unconstitutional. Right at the outset, the Court's opinion
describes the plaintiffs' complaint that "the classroom activities come to a
halt while the students who are released for religious instruction are on
leave." 343 U.S. at 309. And Justice Jackson's dissent
confirmed this understanding: "Here schooling is more
or less suspended during the 'released time' so the nonreligious attendants
will not forge ahead of the churchgoing absentees. But it serves as a
temporary jail for a pupil who will not go to Church." Id. at
324. As Jackson reasonably explained, it was exactly this "dead time"
that had the effect of encouraging students to attend church
schools.
----- Original Message -----
Sent: Thursday, March 17, 2005 9:08
PM
Subject: Re: Harm to others -- Please
don't forget accommodations
Much of this
interesting discussion about the constitutional implications of "harm to
others" has taken place absent even a semblance of a serious analysis
of the concept of "harm." (The classic analysis of "harm" in the last
several decades can be found, I suggest, in Joel Feinberg's trilogy
plus one.) After all, just what does "harm" mean? Is harm the
same as "cost," "burden," "interference," "offensiveness," and so forth? Are
these terms descriptive, evaluative, or some combination of both. Let me
suggest without attending to just what "harm" means, we cannot persuasively
identify which actions are properly identified as harmful, and
therefore, it is terribly difficult to adequately argue for various
interpretations of the religion clauses based on harm to others.
Bobby
Robert
Justin Lipkin
Professor of Law
Widener University School of
Law
Delaware
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