I agree with Alan's statement below, stated better than I did. I would
add that we now do/should include the nones within the system.
Jon
On 2014-06-08 22:36, Alan Brownstein wrote:
If divisive means that people will be upset by a substantive decision
than Eugene is clearly correct. I have always thought the issue was
whether a decision was one that provoked political divisions along
religious lines in the sense that if government could promote
religion
(or interfere with religion) religious groups would have an
additional
incentive to organize and mobilize as religious groups in order to
make sure that it was their faith that the government promoted and
that it was not their faith that was subject to government
interference. Placing a church-state issue beyond the scope of
political decision-making by subjecting it to constitutional
constraints avoided (or at least mitigated) these kinds of
political/religious divisions.
There is probably a better term for this concern than divisiveness.
Alan Brownstein
________________________________________
From: religionlaw-boun...@lists.ucla.edu
[religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene
[vol...@law.ucla.edu]
Sent: Sunday, June 08, 2014 4:54 PM
To: Law & Religion issues for Law Academics
Subject: "Divisiveness"
I agree very much with Tom on this point. In most
controversies, both sides are acting in ways that could plausibly be
labeled as "divisive." Government religious speech may be seen as
"divisive," because it may alienate members of other religious
groups;
but prohibitions on such speech, or litigation seeking such
prohibition, may be as divisive or more so. A pro-Hobby-Lobby
decision might be divisive, but an anti-Hobby-Lobby decision might be
divisive. Indeed, academic criticism of a pro-Hobby-Lobby decision
(or an anti-Hobby-Lobby decision) might be divisive -- and so was the
implementation of the mandate without a broad religious exemption, as
Tom points out. The Employment Division v. Smith regime can be seen
as divisive -- but the RFRA regime, or the Sherbert regime, which
makes controversial judicially implemented religious accommodations
possible, can apparently be divisive, too.
Indeed, in my experience, most people -- I speak generally
here, and not with a focus on this list -- can easily see the
potential "divisiveness" of decisions they dislike on substantive
grounds, but don't even notice the divisiveness of decisions they
think are sound. After all, if one thinks a decision is sound, it's
easy to view those who disagree as just unreasonable, so that their
feelings of alienation don't really count (since they deserved to
lose, and are now just being sore losers).
Of course,
Eugene
Tom Berg writes:
I get those arguments, but they don't really seem to rest on a
ruling for Hobby
Lobby being "divisive"--they rest on it being (assertedly)
substantively wrong.
One could just as easily charge the Obama administration with being
"divisive"
(undermining "harmony," to use Jon's term) by adopting the mandate
in the first
place. (See Rick Garnett's piece on why arguments about divisiveness
should do
only very limited work in religion cases.)
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