Let me tendentiously suggest that "accommodationist" is synonymous with "irrationalist" if in fact one can't subject the proffered arguments to some kind of "independent" scrutiny. Of course, this may represent the ironic triumph of post-modernism, inasmuch as it taught many of us that there is in fact no truly independent vantage point from which to police claims. But, also of course, one can be certain that Wheaton and other religious claimants have no sympathy for post-modernist anti-foundationalism.
Sandy Sent from my iPhone On Jul 5, 2014, at 10:16 AM, "Steven Jamar" <stevenja...@gmail.com<mailto:stevenja...@gmail.com>> wrote: Yes. We are not only deep into an accommodationist regime, but the complicity theory immunizes religious claims from examination except for sincerity. Attenuation could be adopted in a later case, but if it is not attenuated in HL, then it is hard to see where it would be. And as we all know, one can easily play rhetorical games with attenuation and with defining just what is the evil with which one would be complicit. If one believes Justice Alito, and I don't, then the complicity theory only establishes burden, not substantial burden, which is a separate inquiry. So in theory, one could accept any level of complicity as a claim of burden, but still not find it substantial. But that is a twisted mess too, isn't it. How can one inquire into the substantiality of the burden if one accepts the claim of burden? Can we use, as the court did in HL, external financial burden to show substantiality and nothing else? Or would just an action (entering into a contract) be the substantial burden without any showing of financial hardship? And if the adherent claims that just entering the contract is the substantial burden, under the complicity theory coupled with the immunization of the claims from scrutiny seems to make the financial aspect irrelevant. So then the government falls back on compelling interest and least restrictive alternative. I wonder whether to some extent this decision reflects continuing picque at Congress overturning Smith by enacting RFRA - and the court is trying to get it repealed or changed by the surest way -by enforcing it strictly - as pointed out by Abraham Lincoln. Steve On Jul 5, 2014, at 9:29 AM, Levinson, Sanford V <slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>> wrote: Marty writes that the "mess . . . is a function of the increasingly implausible theories of complicity being offered by the plaintiffs' lawyers -- which the Court has invited with its capacious understanding of what constitutes a "religious question" beyond the ken of civil authorities to evaluate." I think he's absolutely right. Hasn't the Court in effect made evaluation of religious argument, at last from an outsider's perspective, nearly impossible, unless one goes down the rabbit hold of challenging "sincerity." sandy _______________________________________________ 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. -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://sdjlaw.org "Example is always more efficacious than precept." Samuel Johnson, 1759 _______________________________________________ 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.
_______________________________________________ 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.
