Thanks, Rick -- For me, the problem with the ND claim is precisely the
opposite. If the beliefs of the group were more unfamiliar, I'd be less
puzzled and more likely to defer to the group's own description of the burden.
As a Catholic, I feel more entitled to probe, and as a consequence I
I too found Alan Brownstein's post, which Rick put up at MOJ and linked in
his post here, quite thoughtful and provocative. I am not a Catholic, so I
do not feel like I have a basis for judgment about Notre Dame's arguments
that rest on ideas of both complicity and scandal (as I understand the
With respect, I do not understand the comment below about the “complicity” of
legal academics in the legal wrongs perpetrated by religious institutions, or
any institutions, that they study and think about. I am assuming that the
institutions are engaged in legal wrongs in the cases we are now
Fair questions. Legal academics do not operate in an isolated ivory tower, but
rather in the public sphere. Law professors, after all, are primarily
responsible for crafting and supporting
RFRA from an early stage until today, in their roles as professors and lawyers.
Witness the law
The exchange between Marci and Marc about moral complicity for law professors
reveals what might be a rare area of common ground for most folks on this list.
Their emails suggest that law professors may have differing views of what kind
of actions by a law professor would render that professor
If any of the law professors who have been urging religious liberty protections
in marriage bills had been involved in Kansas, it would have been a more
sensible bill. The Kansas bill overreaches, in my view, most obviously by
protecting businesses without regard to size or ownership and by
With the understanding that several posts that I have not read have come in
since I started composing this one, and that this one may not respond to all of
the points made in them:
Marci, we all are imperfect or worse. It is good Christian doctrine that we sin
in many ways. One way to put it
In a liberal and tolerant society, I would also suggest that, absent some
particularly compelling circumstances, the government should not burden either
law professor by making them take the action they believe would render them
morally culpable for someone else's wrongdoing.
Which again makes
I confess that I find sincerity relatively unimportant analytically, though
it is obviously relevant, as a political matter, when there may be great
incentives to game the system by proclaiming beliefs one does not in fact
have, such as the recent spate of alleged conversions to
I have found the posts about the HL and ND cases quite fascinating and
illuminating. Thank you all.
It strikes me that the question many of us are debating is really a
normative one rather than a descriptive one. Why *should* law and legal
culture privilege religious needs over other needs? It is
The literature on this question, as a legal question. Is of course growing like
Topsy. But I am not sure that you are asking the same question. Because this
country does not tend to privilege conscience qua conscience to the same degree
as religion, the question usually asked is why religion is
Paul:
I do think I am asking a different question from the one normally dealt
with in the literature, for the reason you note. That said, I suspect that
there is a good deal in the literature addressed to the question I pose--if
anyone has some citations, I'd be grateful.
Who are the religious
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