Sent: Mon 3/27/2006 8:26 PM
To: Law & Religion issues for Law Academics
Subject: RE: Another Catholic Charities Issue
I have no informed
view on what the bill means. Paul Krugman
this morning said it will be
a crime to give medical care to an illegal
alien. If true, I think that
would raise a serious question as applied
to a Catholic or Baptist
hospital.
More sensibly
interpreted, I think this bill is very different
from the requirement that
Catholic Charities give babies to gay adoptive
parents, and the resulting
RFRA claims are also very different. When
Catholic Charities refuses
to place babies with gay parents, it has
no effect on all
the other adoption agencies in the state. Gay persons
who wish to adopt
need only go to another agency. Catholic Charities
honors its own faith
commitments, and the effect on everyone else is
de
minimis.
In the clearest
case on immigration -- if religious charities
were smuggling people across
the border and hiding them here -- the
effect on others is very
different. In effect, the religious charities
would be replacing the
legislative view of immigration policy with their
own view of immigration
policy. Public policy would be -- for better or
worse, and probably for
worse -- that very few people could come in.
But religious policy would be
that many people could come in, and the
religious preference for many
immigrants would be imposeod on everybody,
the majority of whose
representatives voted for very few immigrants.
That is, there are inherently
far more externalities in an exception to
this law than in an exception to
the adoption law.
The further
we get from smuggling people in, the weaker the
government's claim
gets. Hiding people known to be illegal aliens is
hard to distinguish
from smuggling them in. Providing food, medical
care, or social
services to the impoverished, knowing that some
percentage of the
impoverished must be illegal aliens, is a lot easier
to distinguish.
Yes the religious charities could investigate, but
requiring them to
investigate is requiring them to do the government's
work, which may raise
establishment clause issues about delegation to
religious bodies as well as
free exercise issues. I am not at all sure
where the line is. But
I am sure that government has a compelling
interest in not letting religious
organizations create their own
immigration policy that supersedes the
government's immigration policy.
Douglas Laycock
University of
Texas Law School
727 E. Dean Keeton St.
Austin, TX
78705
512-232-1341 (phone)
512-471-6988
(fax)
-----Original Message-----
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Sent: Monday, March 27, 2006 5:20
PM
To: Law & Religion issues for Law Academics;
religionlaw@lists.ucla.edu
Subject: Re: Another Catholic Charities
Issue
That's very helpful, Chris. So, please allow me to repeat the
question
I asked last week, which did not prompt any responses then: If
the new
statute would, indeed, impinge on churches' religious missions as
much
as Chris's post suggests, then can/must/should Congress enact
a
religious exemption to the statute (or is such an exemption required
by
RFRA)? I'm particularly interested in responses from those
who
expressed the view that it was unlawful or grossly insensitive
for
Massachusetts not to include a religious exemption to
the
nondiscrimination provisions of its adoption-provider
laws.
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