I don’t think this is quite a “religion-based exemption,” in the sense that exemptions from generally applicable laws are religion-based exemptions. The state is promulgating a rule that is facially religion-neutral – no pork is just as facially religion-neutral as no horsemeat.
True, it is doing this because otherwise it would have to create special meals for Muslims, so the rule is “religion-based” in the sense of stemming indirectly from people’s practice of religion. But the state’s purpose is to save money and effort – an eminently secular purpose. As to primary effect, I’ve never known what that phrase means in the Lemon test: As with many laws, this law has the effect of making life easier for members of a religious group, but it also has the effect of saving money and effort for the state; which of those is “primary”? But in any event, given that the Court has generally treated even outright exemptions for religious believers as having the permissible “primary effect” of making religious practice easier – as opposed to the impermissible “primary effect” of promoting religion – it seems to me that this exemption is quite consistent with the Court’s Establishment Clause actual application of the “primary effect” prong. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of West, Ellis Sent: Thursday, April 12, 2012 2:11 PM To: Law & Religion issues for Law Academics Subject: RE: Accommodation Marie, I certainly have no objections to exemptions in general just as I have no objections to laws in general from which persons are often exempted—provided the laws (and exemptions?) are secular in purpose and effect, which is what is required by the religion clauses, as originally understood and as interpreted by the Court. Moreover, in my comment, I did not state an objection to religion-based exemptions. I simply asked how such exemptions could be considered secular in nature. I do not think it works to answer that just because all kinds of secular exemptions are granted, religion-based exemptions should be granted or else there is discrimination against religion. According to that logic, if all kinds of “normal” laws give aid, financial and otherwise, to specific secular endeavors (business, health care, education, etc.), then it follows that such aid should be given to specific religions or religious beliefs/activities, or else the government would be guilty of discriminating against religion. But, of course, that kind of “discrimination against religion” is what the establishment clause prohibits. Finally, I would simply add that if the exemptions were conscience-based, as opposed to religion-based, then there would not be an issue. Just as the Court said in dealing with exemptions from the draft, if the government wants to protect religious consciences, it must protect secular consciences as well. Ellis M. West Emeritus Professor of Political Science University of Richmond, VA 23173 804-289-8536 ew...@richmond.edu<mailto:ew...@richmond.edu> From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marie A. Failinger Sent: Thursday, April 12, 2012 4:22 PM To: Law & Religion issues for Law Academics Subject: Accommodation Ellis, the government accommodates people all of the time. By law, it is required to accommodate certain groups of people--e.g., to build ramps so that citizens can get into public buildings, to provide waivers of rules to certain people who get public benefits. I can't legally insist that the government build me a ramp, but a disabled person can. Is that impermissible? I think not--the government has seen that some people have a particular burden in fully functioning as citizens, and allowed for it. In practice, the government accommodates a lot more people. Every time a cop stops you and decides not to give you a ticket for speeding, he/she is essentially accommodating you---he/she is not applying a law that he should, because of some circumstance he/she has discovered about you that is distinctive (you're rushing to the hospital, for example.) A permissible accommodation for a group (including a religious group) is simply a circumstance in which government says, "we have seen that X number of people or this particular group needs to have us apply our discretion to do right by them and not disadvantage them because of their particular characteristic. So we're going to make a "rule" accommodating this group, so that each officer looking at their individual circumstance doesn't have to make the individual decision whether their distinctive circumstance warrants not applying the law to them (i.e., not giving them the ticket.) We think all of these folks should be treated the same, no matter who the officer is." It kills me to sound like Justice Scalia, but if the government willingly accommodates all of these folks in all of these circumstances, but refuses to accommodate some folks when the only reason for their particular difference/exception is religious, isn't that discrimination on the basis of religion banned by the Free Exercise Clause? Now, you might argue that religious accommodations are different because individuals "choose" to be in those situations where they need an exception, but surely most religious people don't "choose" their situation any more than you "chose" to speed in order to get to the hospital faster. Finally, don't you think it is a very good thing, ethically, if we have a government that is willing in lots of circumstances to say, "you as a person matter to us more than our rule, and we are willing to see you as a person?" There will, of course, be a point where the law becomes incoherent if the government looks at every individual case to see what the result should be, but where it is not disruptive to the system, why shouldn't we want the government to see us as persons and not as objects to which the law needs to be applied. Marie A. Failinger Professor of Law Editor, Journal of Law and Religion Hamline University School of Law 1536 Hewitt Avenue Saint Paul, MN 55104 U.S.A. 651-523-2124 (work phone) 651-523-2236 (work fax) mfailin...@hamline.edu<mailto:mfailin...@hamline.edu> (email) >>> "West, Ellis" <ew...@richmond.edu<mailto:ew...@richmond.edu>> 4/12/2012 >>> 2:34 PM >>> Although the District Court may be correct in saying that the primary purpose of the policy is not “to establish the religion of Islam” or to “promote the practice of Islam,” it does concede that the policy “makes accommodating a multitude of religious practices and beliefs easier and more economical.” Would someone explain to me how that purpose and/or effect is “secular” in nature? Even though Prof. Lupu may be correct in saying that this particular policy is good way of accommodating religious beliefs/practices, his comment simply assumes that a policy of accommodating religious beliefs/practices is secular in nature. How so? Ellis M. West Emeritus Professor of Political Science University of Richmond, VA 23173 804-289-8536 ew...@richmond.edu<mailto:ew...@richmond.edu> From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu]<mailto:[mailto:religionlaw-boun...@lists.ucla.edu]> On Behalf Of Ira Lupu Sent: Wednesday, April 11, 2012 7:32 PM To: Law & Religion issues for Law Academics Subject: Re: Court upholds prison no-pork policy against Establishment Clause challenge Is this outcome surprising in any way? Does anyone on the list believe that the court got this wrong? (I certainly don't). If Congress overrode HHS and eliminated pregnancy prevention services from mandatory coverage by employers under the Affordable Care Act, wouldn't the analysis be just the same (imposition of a uniform policy to avoid religious conflict, avoid any need to create controversial exceptions for religious entities, avoid piece-meal litigation, and ease administration of the overall scheme), even though the impetus for change derived from a demand by some for religious accommodation? On Wed, Apr 11, 2012 at 6:48 PM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: River v. Mohr (N.D. Ohio Apr. 5, 2012), http://volokh.com/wp-content/uploads/2012/04/RiversvMohr.pdf . Eugene _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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. -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ 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.
