If the destruction is of the only available copy of the Koran, then we're in #1 land, whether the destruction is an attempt to coerce the prisoner or not. But as I understand it, copies of the Koran were pretty freely available in Guantanamo, courtesy of the U.S. So it seems to me that the coercion question (what I called #3) is simply whether it's unconstitutional to coerce a prisoner through the threat of blasphemous conduct (rather than through the threat of denying access to a religiously necessary item).
> -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > [EMAIL PROTECTED] > Sent: Wednesday, May 10, 2006 2:59 PM > To: Law & Religion issues for Law Academics > Subject: RE: Substantial burden on religious freedom and > placing acopy of the Koran in toilet > > > Can't practice without the Koran? > > Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>: > > > I'm not sure how this sets a requirement *to practice* > your religion. > > > > > -----Original Message----- > > > From: [EMAIL PROTECTED] > > [mailto:[EMAIL PROTECTED] > > > Sent: Wednesday, May 10, 2006 2:46 PM > > > To: Law & Religion issues for Law Academics; Volokh, Eugene > > > Subject: RE: Substantial burden on religious freedom and > > > placing a copy of the Koran in toilet > > > > > > > > > Is part III unconstitutional because it burdens free > > exercise > > > by setting a requirment -- "you do what we say; you tell us > > > > > what we want to know" -- in order to practice your > > religion? > > > > > > Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>: > > > > > > > An interesting question, but let me separate it into > > three > > > > parts: > > > > > > > > (1) Is it a substantial burden if the guard > destroys the > > only > > > > available copy of the Koran (whether it's done in front of > > the > > > > prisoner > > > > or not)? > > > > > > > > (2) Is it a substantial burden if the guard > > > deliberately emotionally > > > > distresses a prisoner by doing something the prisoner > > sees > > > > as blasphemous in front of him? > > > > > > > > (3) Is it somehow unconstitutional -- though it's hard > > for me > > > > to see a standard "substantial burden" argument here -- > > to > > > > coerce a > > > > prisoner through the threat of blasphemous conduct (i.e., > > the > > > > threat of > > > > #2 rather than the threat of #1)? And, if so, as a > > factual > > > > matter would > > > > Moslem prisoners really feel coerced -- as opposed to > > just > > > > emotionally > > > > distressed -- by the combination of the conduct and his > religious > > > > beliefs? For the coercion analysis, I take it that much > > would > > > > depend > > > > whether the prisoners feel an obligation to try to do > something to > > > > stop this act of blasphemy, or are just upset by it. (By way > > of > > > > analogy, I > > > > suppose that many Christians would be upset by > someone's reviling > > > > Jesus in front of them, but wouldn't feel coerced by a demand > > that > > > > "Do what I > > > > want you to, or I'll revile Jesus.") > > > > > > > > Eugene > > > > > > > > > -----Original Message----- > > > > > From: [EMAIL PROTECTED] > > > > > [mailto:[EMAIL PROTECTED] On Behalf > > Of > > > > Paul > > > > > Finkelman > > > > > Sent: Wednesday, May 10, 2006 5:53 AM > > > > > To: Law & Religion issues for Law Academics > > > > > Subject: Re: Substantial burden on religious freedom > > and > > > > > placing a copy of the Koran in toilet > > > > > > > > > > > > > > > Would it matter if the guard used the Koran and toilet > > as a > > > > method of > > > > > coercion -- that is: do what I say or I will do this to > > the > > > > > > > > > only copy > > > > > of the Koran around here that you can use; as opposed > > to > > > > just > > > > > privately > > > > > tossing the koran in the trash or the toilet when the > > > > > priosner is not > > > > > around; isn't the desecration (this is more than > > > > disrespectful > > > > > treatment, isn't it?) of the Koran in front of the > > prisoner > > > > > > > > > the burdern, > > > > > because presumably the prisoner would be emotionally > > > > > distraught by not > > > > > being able to protect the valued religious object from > > > > desecration? > > > > > Actual owenrship would not matter all that much under > > this > > > > analysis. > > > > > > > > > > Paul Finkelman > > > > > > > > > > Volokh, Eugene wrote: > > > > > > > > > > > Rasul v. Rumsfeld, 2006 WL 1216668 (D.D.C.), decided > > > > yesterday, > > > > > >concludes that RFRA applies to Guantanamo, and > > concludes > > > > (among other > > > > > >things) that placing a copy of the Koran in a toilet > > (which > > > > is what > > > > > >plaintiffs allege) would substantially burden the > > > > > plaintiffs' religious > > > > > >exercise. As I understand it, though, the toilet > > > > > allegations related > > > > > >to copies of the Koran that were owned by the U.S. > > > > > government (though > > > > > >they were given to the inmates to use). > > > > > > > > > > > > Is the district court right that disrespectful > > > > > treatment of religious > > > > > >artifacts presumptively violates the Religious Freedom > > > > > Restoration Act > > > > > >-- and presumably the Free Exercise Clause, since this > > was > > > > behavior > > > > > >that intentionally targeted religion -- and, if so, on > > what > > > > > > > > > theory of > > > > > >"substantial burden"? Would the theory be limited to > > > > artifacts that > > > > > >are at least temporarily in the custody of the > > claimant, or > > > > would it > > > > > >also include, say, a guard-provided Koran, so long as > > the > > > > action was > > > > > >done with the intention of offending the claimant's > > > > religious > > > > > >sensibilities? > > > > > > > > > > > > Eugene _______________________________________________ > > > > > >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. > > > > > > > > > > > > > > > > > > > > > > > > > > > -- > > > > > Paul Finkelman > > > > > Chapman Distinguished Professor of Law > > > > > University of Tulsa College of Law > > > > > 3120 East 4th Place > > > > > Tulsa, OK 74105 > > > > > > > > > > 918-631-3706 (voice) > > > > > 918-631-2194 (fax) > > > > > > > > > > [EMAIL PROTECTED] > > > > > > > > > > > > > > > _______________________________________________ > > > > > 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. > > > > > > > > > _______________________________________________ > > > > 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. > > > > > > > > > > > > > > > > Paul Finkelman > > > Chapman Distinguished Professor of Law > > > Univ. of Tulsa College of Law > > > 2120 East 4th Place > > > Tulsa OK 74104-3189 > > > > > > Phone: 918-631-3706 > > > Fax: 918-631-2194 > > > > > _______________________________________________ > > 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. > > > > > > Paul Finkelman > Chapman Distinguished Professor of Law > Univ. of Tulsa College of Law > 2120 East 4th Place > Tulsa OK 74104-3189 > > Phone: 918-631-3706 > Fax: 918-631-2194 > _______________________________________________ > 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. > _______________________________________________ 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.
