RE: Institutional Capacity to Manage Exemptions
Would it have been acceptable during National Prohibition to force Episcopalians, Eastern Orthodox and Catholics to assimilate by giving up wine and using grape juice instead in celebrating the Eucharist? Is the use of wine no different than the religiously motivated practices that you described below? -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Friday, March 11, 2005 7:02 AM To: religionlaw@lists.ucla.edu Subject: Re: Institutional Capacity to Manage Exemptions It is lamentable whenan accommodation that makes good sense is turned down by a legislature. But I see no reason to think that forcing assimilation of many behaviors is lamentable. Only the most rose-colored vision of religion thatcan thinkthat it should not assimilate in many circumstances. Religiously motivatedpractices have included slavery, the oppression of women, and polygamy. The oppression of children for religious purposes continues to this day, putting them at risk of sex abuse, physical abuse, and the suffering and death associated with medical neglect. Marci It's just unavoidable that the Smith rule, without strong and frequent legislative protection for religious exemptions, will force religious observers to convert outright, to minimize their own religiosity, or to change it to fit the government regulation -- religious people will have to convert, to pass and to cover. I find that lamentable. Chris Lund ___ 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.
RE: Institutional Capacity to Manage Exemptions
Title: Message I dont understand the distinction between across the board and ad hoc exemptions, particularly as applied to something like National Prohibition and the exemption for the religious use of wine. How are you going to know whether a practice of a religion about which you know, hypothetically speaking, little or nothing, was significant enough to warrant an exemption? I dont understand how the indeterminacy of text renders any reliance on it unprincipled. If that were true then none of the Religion Clause cases (or Equal Protection or Due Process cases) could be said to have been principled. Is that your position? I might agree with you that the founders would have thought that at least *some* religious exemptions were not guaranteed. But of course the question that matters is which ones were and which ones were not, and whether or not the topography of the domain of freedom from and freedom of religion might have changed over time. -Original Message- From: West, Ellis [mailto:[EMAIL PROTECTED] Sent: Sunday, March 13, 2005 2:43 PM To: Law Religion issues for Law Academics Subject: FW: Institutional Capacity to Manage Exemptions In response to Prof. Newsome's questions below, I would, first, simply repeat that my original question was whether anacross-the-board exemption from valid, secular laws given, by either a legislature or the Supreme Court,to religious persons/groups, and them alone, can be justified on the basis of sometheory orprinciple (other thanthat the majority has a right to pass whatever laws it wants to pass). Second, as explained in an earlier message, byan across-the-board exemption, I mean an exemption from all laws or a large category of laws that is given unconditionally or given unless the government, on the basis of some test like the strict scrutiny test,can convince a judge that in any given situation an exemptionshould notbe given. Third, I am not opposed in principle to legislatures' granting ad hoc exemptions, i.e., exemptions from particular laws granted to certain categories of persons/groups,religious or otherwise,who would be significantly harmed by the application of those laws to them. Therefore, and fourth, I would not be opposed in principle to churches' being given an exemption from a prohibition law so that they could use wine in their rituals. Moreover, although I am not familiar with how essential the use of wine is in various churches, if I were a legislator being asked to include such an exemption in a prohibition law, I would certainly be open to being shown that the harm caused the churchesby the law was significant enough to warranttheir being given an exemption.Finally, I am not sure how to respond to your second question because I do not understand its import. My initial question, stated above, was predicated on the assumption that there was such disagreement about the meaning of the free exercise clause that one could not simply cite the free exercise clause as a principled reason for across-the-board religion-based exemptions. Although I personally believe, having researched and written on this matter for some years now, that the free exercise clause as originally understood does not guarantee a right to religion-based exemptions, if I could be shown otherwise, then, given my own theory of constitutional adjudication, I would not object to the courts' granting religion-based exemptions on the basis of the free exercise clause. Ellis M. West Political Science Department University of Richmond, VA 23173 804-289-8536 [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Friday, March 11, 2005 6:40 PM To: Law Religion issues for Law Academics Subject: RE: Institutional Capacity to Manage Exemptions I have to ask Professor West whether it would have been OK with him if during National Prohibition no exemption had been allowed for the religious use of wine. His answer to *that* question will be most revealing. A second question deserving a response is what conclusions should one draw if it turns out that the meaning(s) of the Religion Clauses are contestable or contingent. (His answer to the first question should have some bearing on his answer to the second question.) A third question is when did I say that I favored across the board exemptions. I still dont know, however, what that term means, as Professor West uses it. As I said before the exemption in the Volstead Act is probably not across the board.) ___ 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
RE: Institutional Capacity to Manage Exemptions
Then, with the sole exception of federal constitutional amendments, religious groups can expect Establishment Clause challenges to their hard-won legislative accommodations: as "blind giveaways" if they are too broad (Cutter), as "denominational preferences" if too tailored (Kiryas Joel). They may also face separation of powers challenges on the (ironic) theory that in providing accommodations, the legislature is usurping the role of judiciary. In other words, the unifying theme in this position is not deference to legislative acts, but hostility to legislative acts and judicial rules alike if they help religious litigants. -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]On Behalf Of [EMAIL PROTECTED]Sent: Monday, March 14, 2005 4:15 PMTo: religionlaw@lists.ucla.eduSubject: Re: Institutional Capacity to Manage Exemptions As Justice Scalia notes in Smith, the likelihood in this society that such an exemption would not go forward is highly unlikely. It is harmless to others, and the religious entities had ready access to the governing powers that be. That is how the system works -- entities who want to amend the law or to force it to accommodate them before it is enacted, lobby their representatives and every other power center they can. There has never been an era in the United States when religious entities felt shy about such political pressure. Marci In a message dated 3/14/2005 2:05:54 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Would it have been acceptable during National Prohibition to force Episcopalians, Eastern Orthodox and Catholics to assimilate by giving up wine and using grape juice instead in celebrating the Eucharist? Is the use of wine no different than the religiously motivated practices that you described below? ___ 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.
Re: Institutional Capacity to Manage Exemptions
I take it that challenges are improper even if well grounded? Not all challenges, of course, prevail (Rosenberger). On Monday, March 14, 2005, at 04:53 PM, Anthony Picarello wrote: Then, with the sole exception of federal constitutional amendments, religious groups can expect Establishment Clause challenges to their hard-won legislative accommodations: as blind giveaways if they are too broad (Cutter), as denominational preferences if too tailored (Kiryas Joel). They may also face separation of powers challenges on the (ironic) theory that in providing accommodations, the legislature is usurping the role of judiciary. In other words, the unifying theme in this position is not deference to legislative acts, but hostility to legislative acts and judicial rules alike if they help religious litigants. Hostility by whom toward whom? The ACLU and other groups defend religious people's rights as well as the rights of others, including in schools when teachers, principals or school boards utterly ban religious expression -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar Nothing that is worth anything can be achieved in a lifetime; therefore we must be saved by hope. Reinhold Neibuhr ___ 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.
Re: Institutional Capacity to Manage Exemptions
As I have said repeatedly, plenty of legislative accommodations are constitutional and legitimate. Blind accommodation, though, (RFRA/RLUIPA) in particular, presents legislators at their worst-- deferential to the point of being brain-dead, when there are obvious harms to others in the process. It's not that legislators have to come out on the side of the third-party victims every time. Rather, a legislator that does not question the religious entity's request for exemption has sold out. Marci In a message dated 3/14/2005 4:54:30 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: In other words, the unifying theme in this position is not deference to legislative acts, but hostility to legislative acts and judicial rules alike if they help religious litigants. ___ 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.
Re: Institutional Capacity to Manage Exemptions
It is lamentable whenan accommodation that makes good sense is turned down by a legislature. But I see no reason to think that forcing assimilation of many behaviors is lamentable. Only the most rose-colored vision of religion thatcan thinkthat it should not assimilate in many circumstances. Religiously motivatedpractices have included slavery, the oppression of women, and polygamy. The oppression of children for religious purposes continues to this day, putting them at risk of sex abuse, physical abuse, and the suffering and death associated with medical neglect. Marci It's just unavoidable that the Smith rule, without strong and frequent legislative protection for religious exemptions, will force religious observers to convert outright, to minimize their own religiosity, or to change it to fit the government regulation -- religious people will have "to convert, to pass and to cover." I find that lamentable. Chris Lund ___ 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.
Re: Institutional Capacity to Manage Exemptions
Isn't the attitudeAlan's identifies as "the idea that religious people will somehow stop existing" better stated as the idea that religion should be privatized? Many who hold the latter view sincerely believe in a robust and well-defended area of religious worship, conduct,and _expression_. Indeed many believe that such privatization is precisely the point of the religion clauses in the First Amendment. This idea contends that it is constitutionally a mistake to think that religion should be privatized and (with privatization) have (arguably) special protections while at the same time be considered an equal regarding governmentalbenefits. Bobby Robert Justin LipkinProfessor of LawWidener University School of LawDelaware ___ 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.
Re: Institutional Capacity to Manage Exemptions
I think it is hard to say any decision is not political, but leaving that aside, the judicial decisions cannot be principled, because they rest on and are made by unelected individuals who always have an inadequate factual basis to assess and judge the public policy at stake. They cannot call hearings, enlarge the record at will, or call witnesses to explain what they do not understand, or even do not know. They are not contacted by constituents and not in contact with the other legislators who are also thinking about similar issues and contacted by their own constituents. They are not accountable tothe public good or to voters. Yoder suffered in particular from the myopic quality of a judicial window into an important social problem. Years later we learn that the Amish children are suffering tremendously, which may or may not be attributable to a small horizon generated by inadequate schooling in this culture. No court can assess what is the best policy then or now. I criticize legislators for failing to ask the hard questions regarding religious exemptions, but at least they can ask them and answer them in some depth. Marci Judicial decisions on exemptions are sometimes political and sometimes principled. Legislative decisions on exemptions are nearly always political. ___ 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.
RE: Institutional Capacity to Manage Exemptions
There are multiple issues mixed together in Marci's sentence about "forcing assimilation of many behaviors." I think assimilation is generally a good thing, especially for religious and cultural practices so small or so odd that their members have difficulty functioning in the larger society. That is of course a controversial view, but I have never understood the intense desire in some quarters to preserve odd practices anddying languages that communicateonly among a few hundred people. But that is not what Marci says. She is for "forcing assimilation." Forced assimilation is very different from voluntary assimilation, with a vastly higher cost in human suffering and social conflict. Forced assimilation should be reserved for cases where forced assimilationis necessary to avoid greater harms. The point ofthe compelling interest is to identify those cases. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax) From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED]Sent: Fri 3/11/2005 6:01 AMTo: religionlaw@lists.ucla.eduSubject: Re: Institutional Capacity to Manage Exemptions It is lamentable whenan accommodation that makes good sense is turned down by a legislature. But I see no reason to think that forcing assimilation of many behaviors is lamentable. Only the most rose-colored vision of religion thatcan thinkthat it should not assimilate in many circumstances. Religiously motivatedpractices have included slavery, the oppression of women, and polygamy. The oppression of children for religious purposes continues to this day, putting them at risk of sex abuse, physical abuse, and the suffering and death associated with medical neglect. Marci It's just unavoidable that the Smith rule, without strong and frequent legislative protection for religious exemptions, will force religious observers to convert outright, to minimize their own religiosity, or to change it to fit the government regulation -- religious people will have "to convert, to pass and to cover." I find that lamentable. Chris Lund ___ 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.
RE: Institutional Capacity to Manage Exemptions
The privatization principle or norm does not get at the problem of religious practices which may be the subject of some police power prohibition. It really is more a matter of driving those practices underground and the prospect of turning some people of faith into lawbreakers, a very real issue confronting the Drys during their push for National Prohibition, for example. Did they really want to turn Episcopalian and Catholic clergy into lawbreakers. An Episcopal Journal published some time in the 1910s at least one article calling on Episcopalian priests to break any law that did not exempt the religious use of wine, and continue to use wine in celebrating Holy Communion. An article in a Catholic journal published in the same time period urged pretty much the same thing. I am not sure what the considered opinion of Jews and Eastern Orthodox on the point was. But my guess would be that they would have taken the same position. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Friday, March 11, 2005 8:38 AM To: religionlaw@lists.ucla.edu Subject: Re: Institutional Capacity to Manage Exemptions Isn't the attitudeAlan's identifies as the idea that religious people will somehow stop existing better stated as the idea that religion should be privatized? Many who hold the latter view sincerely believe in a robust and well-defended area of religious worship, conduct,and _expression_. Indeed many believe that such privatization is precisely the point of the religion clauses in the First Amendment. This idea contends that it is constitutionally a mistake to think that religion should be privatized and (with privatization) have (arguably) special protections while at the same time be considered an equal regarding governmentalbenefits. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware ___ 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.
RE: Institutional Capacity to Manage Exemptions
There are a variety of answers to this question -- about why religion is special and merits distinct constitutional consideration. I have written about several of them -- as have many other list members. But let me add one answer that suggests something of an analogy between religious liberty and gay rights. My colleague, Tobias Wolff, in writing about gay rights, discusses a dynamic that he describes as the denial of the homosexual possibility. What he means by this is that the arguments of some opponents of gay rights seem to be predicated on the idea that gay people and their relationships don't exist or that they will somehow stop existing (or being who they are) if only we do not adopt laws that recognize their presence in our communities and their humanity. I sometimes think a similar dynamic applies to religious identity, belief and practices -- what we might call the denial of the religious possibility. The arguments of some opponents of religious exemptions and accommodations seem to be predicated on the idea that religious people will somehow stop existing (or being who they are, e.g., taking their religion seriously) if only we do not adopt laws that recognize their presence in our communities and their humanity. But, of course, both gay people and religious people do exist. Laws that ignore their existence do not change that reality -- any more than shutting one's eyes to the hardships such laws cause makes those hardships any less painful. Alan Brownstein UC Davis Prof Scarberry, I'm not sure that I understand your first point below. If it assumes that the majority's religion is being taught in the public schools, then the law that authorizes that teaching is not a valid, secular law in the first place, i.e., it is unconstitutional. As for your second point, although I happen to think that my own religion is special, at least to me, I don't think that all religions are special. Do you? If so, why? Even if you do think that all religions are special, do you really think that that is enough to justify government's granting religious persons/groups across-the-board exemptions from valid, secular laws? Would such an argument appeal to non-religious persons? If not, then isn't the only justification you are giving for across-the-board religion-based exemptions the fact that the majority of Americans are religious, favor such exemptions, and have a right to get what they want? Ellis M. West Political Science Department University of Richmond, VA 23173 804-289-8536 [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Scarberry, Mark Sent: Wednesday, March 09, 2005 7:50 PM To: 'Law Religion issues for Law Academics' Subject: RE: Institutional Capacity to Manage Exemptions One might ask, why should those who object to the majority's views on religion alone be given across-the-board exemptions from the majority's views taught to their children in public schools? My third-grade daughter is subject to being taught about all sorts of things that I might not like. (Not another unit on why we must protect all rain forests ...) I'm happy that there is an Establishment Clause that has some bite. But then I also think the Free Exercise Clause should have some bite. Religion is special; the state can't do much to support it, and the state must provide some extra space for private expression of it. Mark S. Scarberry Pepperdine University School of Law P.S. I'm not in favor of eradicating rain forests, but I feel about them sort of the same way Mark Twain felt about Michelangelo after Twain had been in Italy for a while. -Original Message- From: West, Ellis [mailto:[EMAIL PROTECTED] Sent: Wednesday, March 09, 2005 2:40 PM To: Law Religion issues for Law Academics Subject: RE: Institutional Capacity to Manage Exemptions Although the issue of whether legislatures or courts are better qualified or more likely to grant religion-based exemptions is an interesting one, it is not the fundamental one, which is: Why should religious persons/groups, and they alone, be given across-the-board exemptions, whether by courts or legislatures, from valid, secular laws? Of course, religious persons/groups, like other person/groups, should be able to obtain from legislatures exemptions from specific laws that impose undue hardships on them in some way or the other. But why should they be granted across-the-board exemptions? It won't do to say that the First Amendment requires such, because that is the issue. Why should the First Amendment be interpreted to require such? I don't think members of this list-serv have ever adequately answered this question. Ellis M. West Political Science Department University of Richmond, VA 23173 804-289-8536 [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe
RE: Institutional Capacity to Manage Exemptions
I think Professor Brownstein's analogy between gay rights and free exercise is a very important one. Kenji Yoshino points out that having constitutional protections for status but not for conduct means that groups that can assimilate are forced to do so. And the pressure to assimilate takes many forms; Yoshino points out how gay people are encouraged to convert, to pass, and to cover. Kenji Yoshino, Covering, 111 Yale L.J. 769, 774 (2002). (Though I'm being a little loose here, 'to pass' means essentially to lie about one's sexual identity, while 'to cover' means to downplay it.) The word convert should flag for us the obvious parallels between Yoshino's work and the law-and-religion context. So should the phrase status but not conduct as it is the rule of Employment Division v. Smith. It's just unavoidable that the Smith rule, without strong and frequent legislative protection for religious exemptions, will force religious observers to convert outright, to minimize their own religiosity, or to change it to fit the government regulation -- religious people will have to convert, to pass and to cover. I find that lamentable. Chris Lund Christopher C. Lund Visiting Assistant Professor University of Houston Law Center 100 Law Center Houston, TX 77204-6060 [EMAIL PROTECTED] (713) 743-2553 (direct) (713) 743-2122 (fax) -Original Message- From: A.E. Brownstein [mailto:[EMAIL PROTECTED] Sent: Thursday, March 10, 2005 6:12 PM To: Law Religion issues for Law Academics Subject: RE: Institutional Capacity to Manage Exemptions There are a variety of answers to this question -- about why religion is special and merits distinct constitutional consideration. I have written about several of them -- as have many other list members. But let me add one answer that suggests something of an analogy between religious liberty and gay rights. My colleague, Tobias Wolff, in writing about gay rights, discusses a dynamic that he describes as the denial of the homosexual possibility. What he means by this is that the arguments of some opponents of gay rights seem to be predicated on the idea that gay people and their relationships don't exist or that they will somehow stop existing (or being who they are) if only we do not adopt laws that recognize their presence in our communities and their humanity. I sometimes think a similar dynamic applies to religious identity, belief and practices -- what we might call the denial of the religious possibility. The arguments of some opponents of religious exemptions and accommodations seem to be predicated on the idea that religious people will somehow stop existing (or being who they are, e.g., taking their religion seriously) if only we do not adopt laws that recognize their presence in our communities and their humanity. But, of course, both gay people and religious people do exist. Laws that ignore their existence do not change that reality -- any more than shutting one's eyes to the hardships such laws cause makes those hardships any less painful. Alan Brownstein UC Davis Prof Scarberry, I'm not sure that I understand your first point below. If it assumes that the majority's religion is being taught in the public schools, then the law that authorizes that teaching is not a valid, secular law in the first place, i.e., it is unconstitutional. As for your second point, although I happen to think that my own religion is special, at least to me, I don't think that all religions are special. Do you? If so, why? Even if you do think that all religions are special, do you really think that that is enough to justify government's granting religious persons/groups across-the-board exemptions from valid, secular laws? Would such an argument appeal to non-religious persons? If not, then isn't the only justification you are giving for across-the-board religion-based exemptions the fact that the majority of Americans are religious, favor such exemptions, and have a right to get what they want? Ellis M. West Political Science Department University of Richmond, VA 23173 804-289-8536 [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Scarberry, Mark Sent: Wednesday, March 09, 2005 7:50 PM To: 'Law Religion issues for Law Academics' Subject: RE: Institutional Capacity to Manage Exemptions One might ask, why should those who object to the majority's views on religion alone be given across-the-board exemptions from the majority's views taught to their children in public schools? My third-grade daughter is subject to being taught about all sorts of things that I might not like. (Not another unit on why we must protect all rain forests ...) I'm happy that there is an Establishment Clause that has some bite. But then I also think the Free Exercise Clause should have some bite. Religion is special; the state can't do much
RE: Institutional Capacity to Manage Exemptions
Any thoughts on how this analysis applies to Bob Jones University, which was in fact required to change its religiosity -- or at least to violate its felt religious obligations -- to fit the government regulation? Or to the various landlords to whom marital status housing discrimination law has been applied? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Lund, Christopher Sent: Thursday, March 10, 2005 6:44 PM To: 'Law Religion issues for Law Academics' Subject: RE: Institutional Capacity to Manage Exemptions I think Professor Brownstein's analogy between gay rights and free exercise is a very important one. Kenji Yoshino points out that having constitutional protections for status but not for conduct means that groups that can assimilate are forced to do so. And the pressure to assimilate takes many forms; Yoshino points out how gay people are encouraged to convert, to pass, and to cover. Kenji Yoshino, Covering, 111 Yale L.J. 769, 774 (2002). (Though I'm being a little loose here, 'to pass' means essentially to lie about one's sexual identity, while 'to cover' means to downplay it.) The word convert should flag for us the obvious parallels between Yoshino's work and the law-and-religion context. So should the phrase status but not conduct as it is the rule of Employment Division v. Smith. It's just unavoidable that the Smith rule, without strong and frequent legislative protection for religious exemptions, will force religious observers to convert outright, to minimize their own religiosity, or to change it to fit the government regulation -- religious people will have to convert, to pass and to cover. I find that lamentable. Chris Lund Christopher C. Lund Visiting Assistant Professor University of Houston Law Center 100 Law Center Houston, TX 77204-6060 [EMAIL PROTECTED] (713) 743-2553 (direct) (713) 743-2122 (fax) -Original Message- From: A.E. Brownstein [mailto:[EMAIL PROTECTED] Sent: Thursday, March 10, 2005 6:12 PM To: Law Religion issues for Law Academics Subject: RE: Institutional Capacity to Manage Exemptions There are a variety of answers to this question -- about why religion is special and merits distinct constitutional consideration. I have written about several of them -- as have many other list members. But let me add one answer that suggests something of an analogy between religious liberty and gay rights. My colleague, Tobias Wolff, in writing about gay rights, discusses a dynamic that he describes as the denial of the homosexual possibility. What he means by this is that the arguments of some opponents of gay rights seem to be predicated on the idea that gay people and their relationships don't exist or that they will somehow stop existing (or being who they are) if only we do not adopt laws that recognize their presence in our communities and their humanity. I sometimes think a similar dynamic applies to religious identity, belief and practices -- what we might call the denial of the religious possibility. The arguments of some opponents of religious exemptions and accommodations seem to be predicated on the idea that religious people will somehow stop existing (or being who they are, e.g., taking their religion seriously) if only we do not adopt laws that recognize their presence in our communities and their humanity. But, of course, both gay people and religious people do exist. Laws that ignore their existence do not change that reality -- any more than shutting one's eyes to the hardships such laws cause makes those hardships any less painful. Alan Brownstein UC Davis Prof Scarberry, I'm not sure that I understand your first point below. If it assumes that the majority's religion is being taught in the public schools, then the law that authorizes that teaching is not a valid, secular law in the first place, i.e., it is unconstitutional. As for your second point, although I happen to think that my own religion is special, at least to me, I don't think that all religions are special. Do you? If so, why? Even if you do think that all religions are special, do you really think that that is enough to justify government's granting religious persons/groups across-the-board exemptions from valid, secular laws? Would such an argument appeal to non-religious persons? If not, then isn't the only justification you are giving for across-the-board religion-based exemptions the fact that the majority of Americans are religious, favor such exemptions, and have a right to get what they want? Ellis M. West Political Science Department University of Richmond, VA 23173 804-289-8536 [EMAIL PROTECTED] -Original Message- From: [EMAIL
RE: Institutional Capacity to Manage Exemptions
Bob Jones was forced to abandon or violate a religious belief. Given the unique history of race in this country, given the importance of education, the centrality of the effort to desegregate public schools, and the percentage of the education market filled by segregation academies and other private schools in the South, probably there was a compelling interest in Bob Jones. Certainly there was a compelling interest in the companion case, which involved K-12; private schools to avoid desegregation were much more of a problem in K-12 than in colleges and universities. The landlords in the marital status cases are forced to abandon a more central and credible religious belief. But in none of those cases has there been the slightest evidence that any unmarried couple actually had any difficulty finding housing. Until such evidence emerges, the claim of compelling interest is frivolous. Unmarried sex has quite properly been deregulated, and even constitutionally protected; the religious objection to unmarried sex is also constitutionally protected. This is such an easy case of letting both sides live their own lives in peace, but the anti-religious liberty side is unwilling to accept that. Religious landlords must be forced to provide the bedrooms whatever their beliefs. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax) From: [EMAIL PROTECTED] on behalf of Volokh, Eugene Sent: Thu 3/10/2005 9:24 PM To: Law Religion issues for Law Academics Subject: RE: Institutional Capacity to Manage Exemptions Any thoughts on how this analysis applies to Bob Jones University, which was in fact required to change its religiosity -- or at least to violate its felt religious obligations -- to fit the government regulation? Or to the various landlords to whom marital status housing discrimination law has been applied? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Lund, Christopher Sent: Thursday, March 10, 2005 6:44 PM To: 'Law Religion issues for Law Academics' Subject: RE: Institutional Capacity to Manage Exemptions I think Professor Brownstein's analogy between gay rights and free exercise is a very important one. Kenji Yoshino points out that having constitutional protections for status but not for conduct means that groups that can assimilate are forced to do so. And the pressure to assimilate takes many forms; Yoshino points out how gay people are encouraged to convert, to pass, and to cover. Kenji Yoshino, Covering, 111 Yale L.J. 769, 774 (2002). (Though I'm being a little loose here, 'to pass' means essentially to lie about one's sexual identity, while 'to cover' means to downplay it.) The word convert should flag for us the obvious parallels between Yoshino's work and the law-and-religion context. So should the phrase status but not conduct as it is the rule of Employment Division v. Smith. It's just unavoidable that the Smith rule, without strong and frequent legislative protection for religious exemptions, will force religious observers to convert outright, to minimize their own religiosity, or to change it to fit the government regulation -- religious people will have to convert, to pass and to cover. I find that lamentable. Chris Lund Christopher C. Lund Visiting Assistant Professor University of Houston Law Center 100 Law Center Houston, TX 77204-6060 [EMAIL PROTECTED] (713) 743-2553 (direct) (713) 743-2122 (fax) -Original Message- From: A.E. Brownstein [mailto:[EMAIL PROTECTED] Sent: Thursday, March 10, 2005 6:12 PM To: Law Religion issues for Law Academics Subject: RE: Institutional Capacity to Manage Exemptions There are a variety of answers to this question -- about why religion is special and merits distinct constitutional consideration. I have written about several of them -- as have many other list members. But let me add one answer that suggests something of an analogy between religious liberty and gay rights. My colleague, Tobias Wolff, in writing about gay rights, discusses a dynamic that he describes as the denial of the homosexual possibility. What he means by this is that the arguments of some opponents of gay rights seem to be predicated on the idea that gay people and their relationships don't exist or that they will somehow stop existing (or being who they are) if only we do not adopt laws that recognize their presence in our communities and their humanity. I sometimes think a similar dynamic applies to religious identity, belief and practices -- what we might call the denial of the religious possibility. The arguments of some opponents of religious exemptions and accommodations seem to be predicated on the idea that religious people will somehow stop
RE: Institutional Capacity to Manage Exemptions
I asked one of my colleagues who is a student of the legislative process to comment on Prof. Brownstein's view of law-making (see below). Here is what he had to say: Ellis: There is plenty of literature on this subject, from the standpoint of interest groups and legislative decision making. For lack of a better term, Brownstein accepts a rational choice view of the legislative process, whereby costs and benefits are calculated for maximum effect and that a benefit often comes at a price, and frequent investors in the capital of decision makers are compensated. This process of trades certainly goes on, particularly on low salience issues such as the sort of contracts described by the local government official. But the process is not completely void of deliberation and most projects that are awarded are meritorious in the first place. The fact that a political supporter was awarded a project does not mean that the award itself was based solely or even principally on the capital. Providing capital is a necessary, but not a sufficient condition for reward. Indeed, many studies of interest group influence, using PAC contributions as the group's measure of influence, do not show the quid pro quo described in the story below. Some studies do show that PAC giving effects legislative outputs, others do not (again the literature is fairly extensive). Moreover, once the decision making process gets beyond the calculation of individual members, larger contextual forces come into play: party, bicameralism, roles of competing groups, leadership, and electoral constituency. Moreover, other studies (perhaps Bessette's extensive analysis of case studies done on congressional decision making is the most prominent) show that legislation is often the process of deliberation rather than simply exchanging favors. So, to summarize. Yes, it happens, but the extent to which it happens depends on the issue; the causal connection between a favor and a benefits is murky; and there is some debate over the extent to which legislation generally is a product of bargaining over costs and benefits as opposed to deliberation. I don't know enough about how religious groups operate and how they would figure into this scheme, but I will try to find out. DP Daniel J. Palazzolo Associate Professor of Political Science Coordinator of the DC Initiative University of Richmond Richmond, VA 23173 804 289-8973 Ellis M. West Political Science Department University of Richmond, VA 23173 804-289-8536 [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of A.E. Brownstein Sent: Tuesday, March 08, 2005 1:28 PM To: Law Religion issues for Law Academics Subject: RE: Institutional Capacity to Manage Exemptions To follow up on Doug's point, one of the problem's I have with Marci's arguments about judicial exemptions and legislative accommodations is that it sometimes appears as if Marci views religious groups seeking legislative accommodations or constitutionally mandated exemptions as self interested actors concerned only with their own well being while she views legislative and administrative bodies as principled seekers and defenders of the public good. Many of us see legislative and administrative decisions differently. These are often political responses to various self interested constituencies -- some of whose goals conflict with those of particular religious communities. Religious groups have learned to play that game because it is the only game in town -- and some have gotten pretty good at it. But not all religious groups have sufficient political capital in every community in which they live to protect their interests. Moreover, in many cases, there is no reason to think that a religious accommodation protecting a religious group's ability to practice its faith is less related to the public good than a decision to reject the accommodation in order to further the interests of other constituencies with conflicting interests. When fundamental rights are at stake, I, and others, are less inclined to accept this kind of political interest balancing without some judicial supervision. To use RLUIPA as an example, in the land use regulation process, in many disputes, there are often specific groups whose personal interests conflict with the development needs of a religious congregation. The resulting land use decision will often reflect a political evaluation of the competing interest groups more than it does a principled promotion of the public good. In the prison context, in California, an association representing state correctional officers is a major political player that often opposes religious accommodations in prisons. Government attention to this association's demands on many issues is at least as likely to be politically motivated as principled. I have a very close acquaintance who has spent 30 years working in local government in California. He describes
Re: Institutional Capacity to Manage Exemptions
I completely agree with Alan these issues are not black and white. The question is the lesser of two evils in determining accommodation: the courts or the legislature. I think it is very hard to argue the courts are better suited to make such a determination than a legislature. That is not to say legislatures always get it right. No governing system always gets it right. But, on average, they are better at asking whether this particular accommodation has victims who need to be taken into account before it is granted. The victims of religious conduct (whether they are individual or the general public good)are rarely at the table in a litigation. You seem to make the point that in the arena of "fundamental rights," you are inclined to presume that the public good is coincident with the accommodation. I used to think that as well, but I do not now. There is no fundamental right to engage in religious conduct, because conduct has the inherent capacity to hurt others. But let's just assume that religious conduct is a fundamental right; even so, there are often legitimate competing fundamental rights, like a child's right not to die for his or her parent's religious beliefs. This country must move beyond this easy equation of accommodation and public good. They are wholly distinctive and any accommodation granted without consideration of the public good holds the potential to harm others. We will have to agree to disagree on how land use decisions are made. Given the fact that public hearings are always required, it is hardly a bank teller scenario. There are always multiple concerns and multiple factors, along with state and local land use law, not to mention sec. 1983. The unfettered discretion that was attempted to be painted in the RLPA hearings underlying RLUIPA does not square with my experience in this arena. Marci To follow up on Doug's point, one of the problem's I have with Marci's arguments about judicial exemptions and legislative accommodations is that it sometimes appears as if Marci views religious groups seeking legislative accommodations or constitutionally mandated exemptions as self interested actors concerned only with their own well being while she views legislative and administrative bodies as principled seekers and defenders of the public good.Many of us see legislative and administrative decisions differently. These are often political responses to various self interested constituencies -- some of whose goals conflict with those of particular religious communities. Religious groups have learned to play that game because it is the only game in town -- and some have gotten pretty good at it. But not all religious groups have sufficient political capital in every community in which they live to protect their interests. Moreover, in many cases, there is no reason to think that a religious accommodation protecting a religious group's ability to practice its faith is less related to the public good than a decision to reject the accommodation in order to further the interests of other constituencies with conflicting interests. When fundamental rights are at stake, I, and others, are less inclined to accept this kind of political interest balancing without some judicial supervision.To use RLUIPA as an example, in the land use regulation process, in many disputes, there are often specific groups whose personal interests conflict with the development needs of a religious congregation. The resulting land use decision will often reflect a political evaluation of the competing interest groups more than it does a principled promotion of the public good. In the prison context, in California, an association representing state correctional officers is a major political player that often opposes religious accommodations in prisons. Government attention to this association's demands on many issues is at least as likely to be politically motivated as principled.I have a very close acquaintance who has spent 30 years working in local government in California. He describes local government this way. When a citizen seeks a discretionary decision from local government, he or she is treated very much like someone going to the local bank and asking for money. The bank typically wants to know two things. Have you deposited money in the bank that you can withdraw from your account?(What have you given to the bank?) Or, alternatively, if we give you money (a loan), what will you do in the future for us (like paying back the loan with interest)? And in considering the latter inquiry, they will examine the customer's credit rating. What have you done for institutions that have loaned you money in the past? Politicians operate pretty much the same way. If you want them to decide an issue in your favor, they want to know what you have done politically that has
RE: Institutional Capacity to Manage Exemptions
I dont get the argument that individual victims of religious conduct or the public good are rarely at the table in [religious freedom] litigation. Sometimes they are directly at the table in that its a tort or other civil suit by a plaintiff affected by religious conduct. Even if its a criminal or regulatory case, these interests are regularly at the table in the sense that the case doesnt exist unless the government entity is trying to enforce the law in question against the religious claimant. Why doesnt the enforcing agency represent the individual or the public good? We rely on prosecutors and other executive officers to represent individual or social interests in litigation all the time. If for some reason executive officials are inadequate representatives of these interests, then our whole system will have to change dramatically. Prosecutors and other executive officials are also perfectly good at pointing out to judges the potential implications of an exemption in fact, in my experience they tend to exaggerate the effects of exemption. And if executive officials are inadequate, why would the legislature of the same government do any better? If Marcis answer is that the compelling interest test doesnt allow enough consideration of the effects on others or society, then: (1) That would not be a reason for eliminating judicial accommodations altogether; it would only be a reason for judging them under a more intermediate standard. Marcis argument below seems to be directed against judicial accommodations under any standard. (2) Its simply not true that the compelling interest standard has ignored the interests of others or of society. Anyone who has read the compelling interest cases can see that courts have been quite willing to reject religious freedom claims to protect those other interests. The question is whether the religious freedom claim gets a judicial hearing. --- Thomas C. Berg Professor of Law Co-Director, Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy University of St. Thomas School of Law MSL 400 -- 1000 La Salle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax:(651) 962-4996 E-mail: [EMAIL PROTECTED] --- -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Wednesday, March 09, 2005 10:00 AM To: religionlaw@lists.ucla.edu Subject: Re: Institutional Capacity to Manage Exemptions I completely agree with Alan these issues are not black and white. The question is the lesser of two evils in determining accommodation: the courts or the legislature. I think it is very hard to argue the courts are better suited to make such a determination than a legislature. That is not to say legislatures always get it right. No governing system always gets it right. But, on average, they are better at asking whether this particular accommodation has victims who need to be taken into account before it is granted. The victims of religious conduct (whether they are individual or the general public good)are rarely at the table in a litigation. You seem to make the point that in the arena of fundamental rights, you are inclined to presume that the public good is coincident with the accommodation. I used to think that as well, but I do not now. There is no fundamental right to engage in religious conduct, because conduct has the inherent capacity to hurt others. But let's just assume that religious conduct is a fundamental right; even so, there are often legitimate competing fundamental rights, like a child's right not to die for his or her parent's religious beliefs. This country must move beyond this easy equation of accommodation and public good. They are wholly distinctive and any accommodation granted without consideration of the public good holds the potential to harm others. We will have to agree to disagree on how land use decisions are made. Given the fact that public hearings are always required, it is hardly a bank teller scenario. There are always multiple concerns and multiple factors, along with state and local land use law, not to mention sec. 1983. The unfettered discretion that was attempted to be painted in the RLPA hearings underlying RLUIPA does not square with my experience in this arena. Marci To follow up on Doug's point, one of the problem's I have with Marci's arguments about judicial exemptions and legislative accommodations is that it sometimes appears as if Marci views religious groups seeking legislative accommodations or constitutionally mandated exemptions as self interested actors concerned only with their own well being while she views legislative and administrative bodies as principled seekers and defenders of the public good. Many of us see legislative and administrative decisions differently. These are often political responses
RE: Institutional Capacity to Manage Exemptions
This is not responsive to Tom's point. Why are the courts better than legislatures at balancing the competing interests when the legislature is accused of going to far for religion, but not when it is accused of not doing enough? I would have the courts take a second look in both cases, but if only the legislature is capable of balancing these interests, then the courts should not take a second look in either case. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax) From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED]Sent: Wed 3/9/2005 2:57 PMTo: religionlaw@lists.ucla.eduSubject: Re: Institutional Capacity to Manage Exemptions Byhaving legislatures makethe accommodation, I am not repealingthe Establishment Clause, which was the reason those cases came out the way they did.The Smith decision is rather explicit that there is not an unlimited right to accommodate. Where the accommodation is a bonus, notnarrowly tailored to lift the burden on the conduct, there would be a strong EC argument. Marci If, as Marci says, legislatures are better [than courts] at asking whether this particular accommodation has victims who need to be taken into account before it is granted, would that also mean that legislative accommodations should not be struck down by courts on the ground that they impose costs on third parties? In other words, Thornton v. Caldor (striking down the required day off for all religious worshipers) was wrongly decided, and likely Texas Monthly as well and probably TWA v. Hardison too, since the Court there probably interpreted the Title VII religious-accommodation provision more narrowly than Congress intended, based on the Courts concerns about the effect of accommodation on other employees. Moreover, under the trust the political body more than the courts view, Zorach was correctly decided; the school board is in the best position to weigh the interests of religious students and nonreligious students concerning the availability of release time. If the legislature is truly better at making these determinations, then courts also have to trust it when it choose to accommodate, even when there are arguable effects on third parties. But if courts strike down these legislative accommodations while never declaring any constitutional accommodations, then the principle is not let the legislature decide, but rather religious claims should lose no matter who decides. ___ 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.
RE: Institutional Capacity to Manage Exemptions
of a judgment that suasion, rather than coercion, was the more appropriate manner for dealing with a particular minority religion, at that time and in that place. This conclusion could be reached as a result of an internal decision of the Protestant Empire as to the proper course of action to follow, or as a result of pressure brought by minority religions, and the resultant concern by the Protestant Empire that resort to coercion would, in that time and place, be ultimately counterproductive. The distinction here is remarkably thin, but it has everything to do with the dynamic relation between coercion and suasion, a relation that defies easy or simple definition or description, although history gives us a pretty good idea of how it has worked in the past. I have an article coming out this spring which tries to explain all of this in the context of the Volstead Acts exemption for the religious use of wine.) It does not follow that all exemptions sought by these minority religions should be granted, but the burden lies on the courts and the legislature to justify the refusal to grant an exemption.). (Protestant Empire theory tends to reject the idea that there are Protestant minority religions, a conclusion with which many on this list-serv would flatly disagree. Protestant Empire theory holds that pan-Protestantism means that there can be no Protestant minority religions, all Protestants being members of the broader pan-Protestant structure, a structure settled by the Act of Toleration (if not before, in Elizabethan times).) The foregoing may or may not be an adequate answer, but I am convinced that many on this list-serv have adequately answered the question, both on this list-serv and elsewhere. The claim that members of this list-serv may not have ever adequately answered this question is, to put it charitably, overly broad, and flat-out wrong. -Original Message- From: West, Ellis [mailto:[EMAIL PROTECTED] Sent: Wednesday, March 09, 2005 5:40 PM To: Law Religion issues for Law Academics Subject: RE: Institutional Capacity to Manage Exemptions Although the issue of whether legislatures or courts are better qualified or more likely to grant religion-based exemptions is an interesting one, it is not the fundamental one, which is: Why should religious persons/groups, and they alone,be given across-the-board exemptions, whether by courts or legislatures, from valid, secular laws? Of course, religious persons/groups, like other person/groups, should be able to obtain fromlegislatures exemptions from specific laws that impose undue hardships on them in some way or the other. But why should they be granted across-the-board exemptions? It won't do to say that the First Amendment requires such, because that is the issue. Why should the First Amendment be interpreted to require such? I don't think members of this list-serv have ever adequately answered this question. Ellis M. West Political Science Department University of Richmond, VA 23173 804-289-8536 [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Wednesday, March 09, 2005 4:30 PM To: Law Religion issues for Law Academics; religionlaw@lists.ucla.edu Subject: RE: Institutional Capacity to Manage Exemptions This is not responsive to Tom's point. Why are the courts better than legislatures at balancing the competing interests when the legislature is accused of going to far for religion, but not when it is accused of not doing enough? I would have the courts take a second look in both cases, but if only the legislature is capable of balancing these interests, then the courts should not take a second look in either case. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax) From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED] Sent: Wed 3/9/2005 2:57 PM To: religionlaw@lists.ucla.edu Subject: Re: Institutional Capacity to Manage Exemptions Byhaving legislatures makethe accommodation, I am not repealingthe Establishment Clause, which was the reason those cases came out the way they did.The Smith decision is rather explicit that there is not an unlimited right to accommodate. Where the accommodation is a bonus, notnarrowly tailored to lift the burden on the conduct, there would be a strong EC argument. Marci If, as Marci says, legislatures are better [than courts] at asking whether this particular accommodation has victims who need to be taken into account before it is granted, would that also mean that legislative accommodations should not be struck down by courts on the ground that they impose costs on third parties? In other words, Thornton v. Caldor (striking down the required day off for all religious worshipers) was wrongly decided, and likely Texas Monthly as well and probably
RE: Institutional Capacity to Manage Exemptions
Title: Message One might ask, why should those who object to the majority's views on religion alone be given across-the-board exemptions from the majority's views taught to their children in public schools? My third-grade daughter is subject to being taught about all sorts of things that I might not like. (Not another unit on why we must protect all rain forests ...) I'm happy that there is an Establishment Clause that has some bite. But then I also think the Free Exercise Clause should have some bite. Religion is special; the state can't do much to support it, and the state must provide some extra space for private _expression_ of it. Mark S. Scarberry Pepperdine University School of Law P.S. I'm not in favor of eradicating rain forests, but I feel about them sort of the same way Mark Twain felt about Michelangelo after Twain had been in Italy for a while. -Original Message- From: West, Ellis [mailto:[EMAIL PROTECTED] Sent: Wednesday, March 09, 2005 2:40 PM To: Law Religion issues for Law Academics Subject: RE: Institutional Capacity to Manage Exemptions Although the issue of whether legislatures or courts are better qualified or more likely to grant religion-based exemptions is an interesting one, it is not the fundamental one, which is: Why should religious persons/groups, and they alone,be given across-the-board exemptions, whether by courts or legislatures, from valid, secular laws? Of course, religious persons/groups, like other person/groups, should be able to obtain fromlegislatures exemptions from specific laws that impose undue hardships on them in some way or the other. But why should they be granted across-the-board exemptions? It won't do to say that the First Amendment requires such, because that is the issue. Why should the First Amendment be interpreted to require such? I don't think members of this list-serv have ever adequately answered this question. Ellis M. West Political Science Department University of Richmond, VA 23173 804-289-8536 [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Wednesday, March 09, 2005 4:30 PM To: Law Religion issues for Law Academics; religionlaw@lists.ucla.edu Subject: RE: Institutional Capacity to Manage Exemptions This is not responsive to Tom's point. Why are the courts better than legislatures at balancing the competing interests when the legislature is accused of going to far for religion, but not when it is accused of not doing enough? I would have the courts take a second look in both cases, but if only the legislature is capable of balancing these interests, then the courts should not take a second look in either case. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax) From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED] Sent: Wed 3/9/2005 2:57 PM To: religionlaw@lists.ucla.edu Subject: Re: Institutional Capacity to Manage Exemptions Byhaving legislatures makethe accommodation, I am not repealingthe Establishment Clause, which was the reason those cases came out the way they did.The Smith decision is rather explicit that there is not an unlimited right to accommodate. Where the accommodation is a bonus, notnarrowly tailored to lift the burden on the conduct, there would be a strong EC argument. Marci If, as Marci says, legislatures "are better [than courts] at asking whether this particular accommodation has victims who need to be taken into account before it is granted," would that also mean that legislative accommodations should not be struck down by courts on the ground that they impose costs on third parties? In other words, Thornton v. Caldor (striking down the required day off for all religious worshipers) was wrongly decided, and likely Texas Monthly as well - and probably TWA v. Hardison too, since the Court there probably interpreted the Title VII religious-accommodation provision more narrowly than Congress intended, based on the Court's concerns about the effect of accommodation on other employees. Moreover, under the "trust the political body more than the courts" view, Zorach was correctly decided; the school board is in the best position to weigh the interests of religious students and nonreligious students concerning the availability of release time. If the legislature is truly better at making these determinations, then courts also have to trust it when it choose to accommodate, even when there are arguable effects on third parties. But if courts strike down these legislative accommodations while never declaring any constitutional accommodations, then the principle is not "let the legislature decide," but rather "religious claim
RE: Institutional Capacity to Manage Exemptions
To follow up on Doug's point, one of the problem's I have with Marci's arguments about judicial exemptions and legislative accommodations is that it sometimes appears as if Marci views religious groups seeking legislative accommodations or constitutionally mandated exemptions as self interested actors concerned only with their own well being while she views legislative and administrative bodies as principled seekers and defenders of the public good. Many of us see legislative and administrative decisions differently. These are often political responses to various self interested constituencies -- some of whose goals conflict with those of particular religious communities. Religious groups have learned to play that game because it is the only game in town -- and some have gotten pretty good at it. But not all religious groups have sufficient political capital in every community in which they live to protect their interests. Moreover, in many cases, there is no reason to think that a religious accommodation protecting a religious group's ability to practice its faith is less related to the public good than a decision to reject the accommodation in order to further the interests of other constituencies with conflicting interests. When fundamental rights are at stake, I, and others, are less inclined to accept this kind of political interest balancing without some judicial supervision. To use RLUIPA as an example, in the land use regulation process, in many disputes, there are often specific groups whose personal interests conflict with the development needs of a religious congregation. The resulting land use decision will often reflect a political evaluation of the competing interest groups more than it does a principled promotion of the public good. In the prison context, in California, an association representing state correctional officers is a major political player that often opposes religious accommodations in prisons. Government attention to this association's demands on many issues is at least as likely to be politically motivated as principled. I have a very close acquaintance who has spent 30 years working in local government in California. He describes local government this way. When a citizen seeks a discretionary decision from local government, he or she is treated very much like someone going to the local bank and asking for money. The bank typically wants to know two things. Have you deposited money in the bank that you can withdraw from your account? (What have you given to the bank?) Or, alternatively, if we give you money (a loan), what will you do in the future for us (like paying back the loan with interest)? And in considering the latter inquiry, they will examine the customer's credit rating. What have you done for institutions that have loaned you money in the past? Politicians operate pretty much the same way. If you want them to decide an issue in your favor, they want to know what you have done politically that has benefited them -- then you can draw on the political capital you have developed in your account. Or, alternatively, they want to know what you can do in the future that will be politically helpful -- and a proven track record of delivering political goods is very helpful in establishing your political credit. I don't say that legislative and administrative bodies never act for the public good. Sometimes they do. But it is also the case that religious groups seeking accommodations often are willing to take into account the needs of third parties and will support a compromise that promotes the broader interests of the community. These issues are rarely entirely black and white. Alan Brownstein UC Davis At 10:03 PM 3/7/2005 -0600, you wrote: Content-class: urn:content-classes:message Content-Type: multipart/alternative; boundary=_=_NextPart_001_01C52393.C070ECAC Small religions can get exemptions if they somehow get on the legislative agenda; the if is large. Even reviled religions can get exemptions if they are large enough to have political clout; the Catholic vote in 1919 was critical in big northeastern states with large Congressional delegations and lots of electoral votes. A small and reviled religion cannot get an exemption from a legislature, and generally cannot even get equal treatment from a legislature in a single issue vote. Everyone now says Lukumi was a clear case of discrimination. But in the Congress that passed RFRA unanimously and 97-3, Steve Solarz could not get a single office to even talk to him about an amicus brief in Lukumi. Politics also works the other way. No one could get permission to withhold medical care from children from a court under the compelling interest test. But the Christian Scientists got all these exemptions from legislatures on sheer politics, and a number of legislators have enacted vaccination exemptions. Judicial decisions on exemptions are
RE: Institutional Capacity to Manage Exemptions
I am going to respond to this off list. There is a serious disagreement regarding the relevant facts, and I will have that discussion privately. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Monday, March 07, 2005 10:49 PM To: religionlaw@lists.ucla.edu Subject: Re: Institutional Capacity to Manage Exemptions I couldn't agree more, Mike, that the facts determinative here, but I strongly disagree with your characterization of the facts. Not every accommodation should be granted, indeed, many should not. Since I don't know what the Pagans requested, I don't know how to judge the denials. It is nonsense to assume that every accommodation denied is evidence of discrimination. It may just show common sense on the part of the legislature. The fact the Episcopalians helped the Catholics achieve their goal hardly undermines my point that even reviled or small groups have succeeded. There are many instances where religious groups have helped others to obtain exemptions. The Baptists and the Presbyterians have gone to the mat for the Catholic Church to obtain exemptions from child-abuse reporting statutes in numerous states. The Presbyterian Church, along with the Catholic, was behind a Colorado bill that would have immunized churches' finances completely in clergy abuse cases. The bill only narrowly was defeated. Of course the faith-healing exemptions came from the Christian Scientists, but don't get maudlin on me. They were kick-started by two powerful CS, Haldeman and Ehrlichman in the Nixon Administration, who instituted a regulation that required states to enact such exemptions in order to receive federal medical funding. It's not just hard work; it's the exercise of raw political power. Over 30 states capitulated. When children's groups finally figured out what was going on, they were able to start fighting such exemptions, but with so many states, it was extremely difficult and children remain at risk in numerous states. This is one of those exemptions where the denial makes perfect policy sense to me, though it is not constitutionally required. The Native American Church was hardly pushed around when drug counselors who agreed not to use illegal drugs as part of their job were denied unemployment compensation. The NAC had already obtained exemptions in certain states, as the Court pointed out in Smith, and continued to the point where states where they are present have such exemptions. Where is the injustice here? Please provide examples of small (all religions are minorities) religions with claims for exemptions that were denied and that denial was inconsistent with the public good. Marci I really didnt want to get into this, but, Marci, you are wrong with respect to some critical facts. I am not going to address the first paragraph (or the third and the fourth, for that matter,) even though I entirely disagree with your position. I am more concerned, however, with some of your claims in the second paragraph. There are small groups with cohesive messages, like the Pagans, that have not obtained exemptions or accommodations. Quite the contrary, they routinely get stomped on. See Barner-Barrys book on the subject. Second, I have an article coming out in a few weeks that, by looking closely at the legal and other materials available to me covering the years leading up to National Prohibition, establishes that Catholics did not get the exemption for the use of sacramental wine during National Prohibition the motive force for the exemption was the appeasement of Episcopalians. (And I would hope that one day Catholics and Episcopalians would bring themselves to sit down and have an honest and frank discussion about the exemption and how it came to be. For it is true that Catholics have routinely taken the credit for the exemption, and the facts dont bear Catholics out.) And there is no credible argument that anti-Catholicism did not high in the land in the period, say, 1910-1930. Early twentieth-century anti-Catholicism is a fact. On the child abuse matter, I find your reference to Baptists and Presbyterians providing backup support interesting. But why isnt the reverse the truth, that the Protestants were deeply involved in the subject and that there was a resulting interest convergence, just as was the case with National Prohibition? Your use of the term faith healing groups masks the important fact that the real group in interest was the Christian Scientists. A student in my church-state seminar last year, wrote a paper on how Christian Scientists were able to obtain these exemptions. The answer is hard work, lots of money, and an ethnic identity with the law makers. The native American Church finally got justice in Oregon, no thanks to the Courts, however. I dont know what to make of a claim that even though a group got pushed around unnecessarily so that because the finally got what they should have gotten earlier that things
RE: Institutional Capacity to Manage Exemptions
I really didnt want to get into this, but, Marci, you are wrong with respect to some critical facts. I am not going to address the first paragraph (or the third and the fourth, for that matter,) even though I entirely disagree with your position. I am more concerned, however, with some of your claims in the second paragraph. There are small groups with cohesive messages, like the Pagans, that have not obtained exemptions or accommodations. Quite the contrary, they routinely get stomped on. See Barner-Barrys book on the subject. Second, I have an article coming out in a few weeks that, by looking closely at the legal and other materials available to me covering the years leading up to National Prohibition, establishes that Catholics did not get the exemption for the use of sacramental wine during National Prohibition the motive force for the exemption was the appeasement of Episcopalians. (And I would hope that one day Catholics and Episcopalians would bring themselves to sit down and have an honest and frank discussion about the exemption and how it came to be. For it is true that Catholics have routinely taken the credit for the exemption, and the facts dont bear Catholics out.) And there is no credible argument that anti-Catholicism did not high in the land in the period, say, 1910-1930. Early twentieth-century anti-Catholicism is a fact. On the child abuse matter, I find your reference to Baptists and Presbyterians providing backup support interesting. But why isnt the reverse the truth, that the Protestants were deeply involved in the subject and that there was a resulting interest convergence, just as was the case with National Prohibition? Your use of the term faith healing groups masks the important fact that the real group in interest was the Christian Scientists. A student in my church-state seminar last year, wrote a paper on how Christian Scientists were able to obtain these exemptions. The answer is hard work, lots of money, and an ethnic identity with the law makers. The native American Church finally got justice in Oregon, no thanks to the Courts, however. I dont know what to make of a claim that even though a group got pushed around unnecessarily so that because the finally got what they should have gotten earlier that things are somehow OK. What is justice denied? That small evangelical groups got exemptions is no big deal in a Protestant Empire. Facts always trump political theory, I am afraid. Some religious minorities fare better than others, no matter what the theory says. People who say that things are going well with religious minorities should take the time to look at the narratives that suggest the contrary. These narratives thoroughly demolish the theories. And they make the case for exemptions on a case-by-case basis. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Sunday, March 06, 2005 8:03 PM To: religionlaw@lists.ucla.edu Subject: Re: Institutional Capacity to Manage Exemptions Doug-- You missed my point here. Taking exemptions on a case-by-case basis is illegitimate, because it drives the consideration by the courts toward one individual believer and away from the larger public good that needs to be factored in. Courts are simply inadequate to make that public good determination; they cannot hold hearings or consider facts beyond the record. The record, instead, is manufactured by the parties, a fact you used to great and admirable advantage in the Lukumi case. The factual premise that the legislative arena drives results toward mainstream religious practices and away from the smaller religions is not borne out in political theory (Mancur Olson's now widely accepted work showing that small groups with cohesive messages do better in the legis process than do disaggregated majorities), or in practice. Faith-healing groups have obtained unimaginable numbers of exemptions from the laws intended to protect children --without the benefit of any Supreme Court publicity; the Native American Church is using peyote; and the military are wearing yarmulkes. Small evangelical groups have obtained exemptions from the laws that govern safety in day care centers and camps. Catholics even got an exemption for the use of sacramental wine during Prohibition when it is argued that anti-Catholic sentiment ran high in the land. Clergy in many states are exempted from reporting childhood sexual abuse they know about -- a move pushed hardest by the Catholic Church (with the Baptists and the dwindling Presbyterians providing backup when desired). As an empirical matter, the compelling interest test and the least restrictive means test has led courts to focus on the believer at the expense of society, see, e.g., Yoder and most of Posner's free exercise decisions. Yoder pays the slightest lip service to the public good in the midst of its love affair with the Amish. Legislatures have a time-honored and regularized procedure for hearing
Re: Institutional Capacity to Manage Exemptions
I couldn't agree more, Mike, that the facts determinative here, but I strongly disagree with your characterization of the facts. Not every accommodation should be granted, indeed, many should not. Since I don't know what the Pagans requested, I don't know how to judge the denials. It is nonsense to assume that every accommodation denied is evidence of discrimination. It may just show common sense on the part of the legislature. The fact the Episcopalians helped the Catholics achieve their goal hardly undermines my point that even reviled or small groups have succeeded. There are many instances where religious groups have helped others to obtain exemptions. The Baptists and the Presbyterians have gone to the mat for the Catholic Church to obtain exemptions from child-abuse reporting statutes in numerous states. The Presbyterian Church, along with the Catholic, was behind a Colorado bill that would have immunized churches' finances completely in clergy abuse cases. The bill only narrowly was defeated. Of course the faith-healing exemptions came from the Christian Scientists, but don't get maudlin on me. They were kick-started by two powerful CS, Haldeman and Ehrlichman in the Nixon Administration, who instituted a regulation that required states to enact such exemptions in order to receive federal medical funding. It's not just hard work; it's the exercise of raw political power. Over 30 states capitulated. When children's groups finally figured out what was going on, they were able to start fighting such exemptions, but with so many states, it was extremely difficult and children remain at risk in numerous states. This is one of those exemptions where the denial makes perfect policy sense to me, though it is not constitutionally required. The Native American Church was hardly pushed around when drug counselors who agreed not to use illegal drugs as part of their job were denied unemployment compensation. The NAC had already obtained exemptions in certain states, as the Court pointed out in Smith, and continued to the point where states where they are present have such exemptions. Where is the injustice here? Please provide examples of small (all religions are minorities) religions with claims for exemptions that were denied and that denial was inconsistent with the public good. Marci I really didnt want to get into this, but, Marci, you are wrong with respect to some critical facts. I am not going to address the first paragraph (or the third and the fourth, for that matter,) even though I entirely disagree with your position. I am more concerned, however, with some of your claims in the second paragraph. There are small groups with cohesive messages, like the Pagans, that have not obtained exemptions or accommodations. Quite the contrary, they routinely get stomped on. See Barner-Barrys book on the subject. Second, I have an article coming out in a few weeks that, by looking closely at the legal and other materials available to me covering the years leading up to National Prohibition, establishes that Catholics did not get the exemption for the use of sacramental wine during National Prohibition the motive force for the exemption was the appeasement of Episcopalians. (And I would hope that one day Catholics and Episcopalians would bring themselves to sit down and have an honest and frank discussion about the exemption and how it came to be. For it is true that Catholics have routinely taken the credit for the exemption, and the facts dont bear Catholics out.) And there is no credible argument that anti-Catholicism did not high in the land in the period, say, 1910-1930. Early twentieth-century anti-Catholicism is a fact. On the child abuse matter, I find your reference to Baptists and Presbyterians providing backup support interesting. But why isnt the reverse the truth, that the Protestants were deeply involved in the subject and that there was a resulting interest convergence, just as was the case with National Prohibition? Your use of the term faith healing groups masks the important fact that the real group in interest was the Christian Scientists. A student in my church-state seminar last year, wrote a paper on how Christian Scientists were able to obtain these exemptions. The answer is hard work, lots of money, and an ethnic identity with the law makers. The native American Church finally got justice in Oregon, no thanks to the Courts, however. I dont know what to make of a claim that even though a group got pushed around unnecessarily so that because the finally got what they should have gotten earlier that things are somehow OK. What is justice denied? That small evangelical groups got exemptions is no big deal in a Protestant Empire. Facts always trump political theory, I am afraid. Some religious minorities fare better than others, no matter what the theory says. People who say that things are going well with religious minorities should take the time to look at the narratives
RE: Institutional Capacity to Manage Exemptions
Small religions can get exemptions if they somehow get on the legislative agenda; the if is large. Even reviledreligions can get exemptions if they are large enough to have political clout; the Catholic vote in 1919 was critical in big northeastern states with large Congressional delegations and lots of electoral votes. A small and reviled religion cannot get an exemption from a legislature, and generally cannot even get equal treatment from a legislature in a single issue vote. Everyone now says Lukumi was a clear case of discrimination. But in the Congress that passed RFRA unanimously and 97-3, Steve Solarz could not get a single office to even talk to him about an amicus brief in Lukumi. Politics also works the other way. No one could get permission to withhold medical care from children from a court under the compelling interest test. But the Christian Scientists got all these exemptions from legislatures on sheer politics, and a number of legislators have enacted vaccination exemptions. Judicial decisions on exemptions are sometimes political and sometimes principled. Legislative decisions on exemptions are nearly always political. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax) From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED]Sent: Mon 3/7/2005 9:49 PMTo: religionlaw@lists.ucla.eduSubject: Re: Institutional Capacity to Manage Exemptions I couldn't agree more, Mike, that the facts determinative here, but I strongly disagree with your characterization of the facts. Not every accommodation should be granted, indeed, many should not. Since I don't know what the Pagans requested, I don't know how to judge the denials. It is nonsense to assume that every accommodation denied is evidence of discrimination. It may just show common sense on the part of the legislature.The fact the Episcopalians helped the Catholics achieve their goal hardly undermines my point that even reviled or small groups have succeeded. There are many instances where religious groups have helped others to obtain exemptions. The Baptists and the Presbyterians have gone to the mat for the Catholic Church to obtain exemptions from child-abuse reporting statutes in numerous states. The Presbyterian Church, along with the Catholic, was behind a Colorado bill that would have immunized churches' finances completely in clergy abuse cases. The bill only narrowly was defeated. Of course the faith-healing exemptions came from the Christian Scientists, but don't get maudlin on me. They were kick-started by two powerful CS, Haldeman and Ehrlichman in the Nixon Administration, who instituted a regulation that required states to enact such exemptions in order to receive federal medical funding. It's not just hard work; it's the exercise of raw political power. Over 30 states capitulated. When children's groups finally figured out what was going on, they were able to start fighting such exemptions, but with so many states, it was extremely difficult and children remain at risk in numerous states. This is one of those exemptions where the denial makes perfect policy sense to me, though it is not constitutionally required.The Native American Church was hardly pushed around when drug counselors who agreed not to use illegal drugs as part of their job were denied unemployment compensation. The NAC had already obtained exemptions in certain states, as the Court pointed out in Smith, and continued to the point where states where they are present have such exemptions. Where is the injustice here?Please provide examples of small (all religions are minorities) religions with claims for exemptions that were denied and that denial was inconsistent with the public good.Marci I really didnt want to get into this, but, Marci, you are wrong with respect to some critical facts. I am not going to address the first paragraph (or the third and the fourth, for that matter,) even though I entirely disagree with your position. I am more concerned, however, with some of your claims in the second paragraph. There are small groups with cohesive messages, like the Pagans, that have not obtained exemptions or accommodations. Quite the contrary, they routinely get stomped on. See Barner-Barrys book on the subject. Second, I have an article coming out in a few weeks that, by looking closely at the legal and other materials available to me covering the years leading up to National Prohibition, establishes that Catholics did not get the exemption for the use of sacramental wine during National Prohibition the motive force for the exemption was the appeasement of Episcopalians. (And I would hope that one day Catholics and Episcopalians would bring themselves to sit down and have an honest and frank discussion about the exemption and how it came to be. For it is true that Catholics have routinely
