Doug's position was enunciated by courts grappling under sherbet with claims for sacred marijuana use marc
________________________________ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Tuesday, March 02, 2010 4:30 PM To: Law & Religion issues for Law Academics; Volokh, Eugene Cc: 'Law & Religion issues for Law Academics' Subject: Re: Religious exemptions and preferences for the religious overthe nonreligious I have always said that if your religious claim aligns too closely with self interest, you will lose, and that is the right result even if it is sometimes an unfortunate result. My standard classroom example has been conscientious objection to paying taxes, but this may become the new standard example. The court may write the opinion in a variety of ways. It find the claim insincere, or it may find that the claim invites many similar claims that will be insincere, or it may find a compelling interest in not trying to adjudicate all thsoe claims, or it may say that allowing such a claim discriminates against people of other faiths and nonbeleivers who can't make the same claim, or it may even recognize that allowing such a claim creates pressure to convert. In terms of substantive neutrality, the impact on secular self-interest changes incentives for every married prisoner -- and in the tax example, for substantially the whole adult population. These incentive effects may collectively be much greater than the burden on religious practice of those who would genuinely qualify with a sincere claim. Quoting "Volokh, Eugene" <vol...@law.ucla.edu>: > In Henderson v. Hubbard, 2010 WL 599886 (E.D. Cal. > Feb. 18), a prison inmate claimed that the denial of conjugal visits > with his wife violated RLUIPA and the Free Exercise Clause because he > believes that "as a Muslim, he is required to engage in sexual > relations with his wife." Assume that his belief is sincere; I > suppose it might well be; and let's even set aside whether the > exception was justified under strict scrutiny. (The court didn't > reach that, because it rejected the claim on statute of limitations > grounds.) > > Instead, assume that a prison decided to grant this > exemption from the generally applicable ban on conjugal visits, on > its own judgment or as a matter of state law. Would such an > exemption limited to religious objectors be constitutionally > permissible? Or would it be an undue preference for the religious > over the nonreligious, and on top of that one that pressures people > into claiming religious beliefs and participating in religious > practices in order to do that? (I assume that the incentive to claim > religious beliefs posed in this case is much greater than the > incentive to sit through a graduation prayer present in Lee v. > Weisman.) > > Eugene > Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713
_______________________________________________ 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.
