The theoretical principle behind my claim that, "As to 'the
sons' own interest in conforming to their religion,' I don't think it's 'their
religion' at age 8 days, at least under what should be the secular legal
system's understanding of religion (the subject's own belief system)," is
simply that, under the First Amendment and under equal protection principles,
any special treatment of people based on their religion must stem from their
religious beliefs - their own understanding of God's commands - and not because
of their bloodlines.
First, the justifications for religious freedom have generally stemmed from the
burden that is imposed on people when they are ordered by secular law to do
something and feel ordered by their religious beliefs to do the opposite. And
it is the individual's beliefs that are important, not to the beliefs of the
group to which society says he "belongs." See, e.g., Thomas v. Review Bd.
Second, claims that we should treat some people's interests differently because
of the ethnic group to which their mothers belonged conflicts with
well-established equal protection principles, under which our secular rights
and interests are not supposed to be affected by our ethnicity.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Horwitz
Sent: Monday, July 09, 2012 5:35 AM
To: Law & Religion issues for Law Academics
Subject: RE: Equivocal evidence, and the right to choose
I am also curious about roughly the same point Howard raises. I always value
the doctrine- and act-specific discussions I get on this list--I learn a great
deal from them, and the theory I can more or less do on my own. But these
discussions often seem to me to be just one step away from fairly major and
consequential statements or assumptions about the underlying theory. So what is
driving Eugene's paragaph (2), or some of the other statements (not just from
Eugene) that have taken place in the course of this valuable discussion? Is it
a moral intuition? A belief, as the paragraph below indicates, both that we
have a "secular legal system" and about what that entails? A belief about the
Constitution itself and what it requires? A belief in a wholly individualist
and voluntarist conception of the self as a legal subject? A kind of
implication that the Constitution enacts Mill's On Liberty or Joel Feinberg's
work and not, say, Charles Taylor's work? A thin or thick conception of what
"harm" means? A belief about the relevance or irrelevance of history,
tradition, community, the sources of or proper occasions for thick commitments?
I appreciate that these are large questions. And in many particular fact-based
cases what I loosely call my common-sense intuitions *might* comport with
Eugene's views. But it seems to me, as I wrote earlier, that there are some
fairly large theoretical commitments guiding those intuitions here and that
they are reasonably subject to questioning.
Paul Horwitz
University of Alabama School of Law
________________________________
Subject: RE: Equivocal evidence, and the right to choose
Date: Sun, 8 Jul 2012 13:08:57 -0400
From: howard.fried...@utoledo.edu<mailto:howard.fried...@utoledo.edu>
To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>
It seems to me that your paragraph (2) focuses the issue. Should the Free
Exercise clause understand "religion" only as a belief system? Traditional
Judaism does not define it that way. Instead (for those who are born of a
Jewish mother) it is an identity that precedes a belief system. Can the 1st
Amendment be seen as protecting a concept of religion that is different from
the Christian notion that belief (acceptance of Jesus) defines religion? It was
the insistence on seeing religion as only a belief system that led to the
controversial decision by the Supreme Court of the United Kingdom in 2009 that
ruled Jewish schools using the Orthodox Jewish definition of "who is a Jew"
were engaged in "ethnic origin" discrimination (which British law equates with
racial discrimination).
Howard Friedman
-----Original Message-----
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
on behalf of Volokh, Eugene
Sent: Sun 7/8/2012 12:29 AM
To: Law & Religion issues for Law Academics
Subject: RE: Equivocal evidence, and the right to choose
(1) I'm not sure why A's interest in B's religion should give
A the right to alter B's body - even if A is B's parent.
(2) As to "the sons' own interest in conforming to their
religion," I don't think it's "their religion" at age 8 days, at least under
what should be the secular legal system's understanding of religion (the
subject's own belief system).
Eugene
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