My apologies for the delay replying to Mark's response. Two quick thoughts:
(1) Mark's response is carefully tailored to the manslaughter hypothetical, but doesn't deal with the claimed testimonial privilege hypothetical, the antidiscrimination law hypothetical, the copyright law hypothetical, or the many other situations where laws have various exceptions for secular reasons. (2) Even as to the manslaughter hypothetical, I'm not sure that "if a religious blasphemy motivation were sufficient to turn murder into manslaughter," "[t]he damage to the law's purposes would substantially exceed the damage caused by the traditional mitigating factors that differentiate manslaughter from murder." All mitigation of murder to manslaughter can cause some societal harms, and the magnitude of the harms depends on what you think of the particular kind of provocation. My sense is that many feminists think the adultery category of provocation reinforces sexist notions that have long partly legitimated violence by cuckolded men (though the law formally applies to women who kill as well, they are much rarer than men who kill). Others might well think that the retaliation-for-violent-attack category of provocation reinforces attitudes that dangerously support private revenge. It's far from obvious, I think, that these harms caused by the secular mitigation categories are "substantially exceed[ed]" by the possible harms that would be caused by a blasphemy mitigation category - at least if the decision is to be made by judges applying a constitutional Free Exercise Clause rule. To be sure, I think it's perfectly reasonable for legislatures to come to this conclusion, or for that matter to conclude that even if the harms are comparable, someone who kills in reaction to adultery or to an attack on himself or a close family member is just morally less culpable than someone who kills in reaction to blasphemy. But that just reflects my perspective that the presence of secular exceptions shouldn't take the case out of the Employment Division v. Smith model and back into a vestige of the Sherbert/Yoder model. Once the case is pushed into the Sherbert/Yoder model, courts would have to decide that, as a constitutional matter, the damage to the law's purposes of a hypothetical blasphemy provocation would indeed substantially exceed the damage caused by the adultery provocation and other provocations - and I just don't see any principled way for courts to reliably make such a judgment. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Thursday, February 16, 2012 12:15 AM To: Law & Religion issues for Law Academics Subject: Answering Eugene's hypos I realized as I went through Eugene's hypos that I'd be two or three law review articles (or maybe a book) down the road before I was able to answer them to my (or presumably his) satisfaction. Much of this may involve me trying to reinvent various wheels, and help from others who already know about the wheels would be appreciated. I'll try to work through the hypos as I have time, but let me say something initially about the first one: whether my views would require that a killing for blasphemy be treated as manslaughter, because the religious reason is like other non-religious reasons which are sufficient to reduce a homicide from murder to manslaughter. One of the purposes of a strong regime of religious freedom is to minimize religious violence. That purpose is directly and substantially undermined if we treat homicide more leniently where it is motivated by anger against the victim, due to the victim's religion or exercise of religion. More generally, religious freedom cannot exist (at least in a society that is not armed to the teeth) if the state does not provide the basic protection against violence that, even on a Hobbesian view, is necessary for the state to have legitimacy. As the Declaration puts it, "to secure these rights [life, liberty, pursuit of happiness], Governments are instituted among Men." We institute the government in order to create an environment in which we can exercise the rights. Of course, if it fails to provide such an environment or affirmatively invades our rights, then "it is the Right of the People to alter or to abolish it, and to institute [a] new Government." There is thus a baseline of protection against violence (and perhaps other forms of interference) by others that would prevent us from enjoying our unalienable rights, including the right to religious liberty. The government's interests (our interests) in preventing violence and in particular violence directed against the exercise of an unalienable right would be greatly undermined if we recognized an offense to religious sensibilities as a mitigating factor in a homicide. Such recognition would put us all at risk of violence for practicing our religions (or for not practicing someone else's). In addition, the traditional mitigating factors are retail in nature: if I sleep with someone's wife, he may become enraged and kill me on the spot, but I won't be in danger from thousands of people who want to kill me for doing that (unless I'm Don Juan or Benjamin Franklin). Ditto if I beat someone up; he or she might become enraged and kill me, but it would only be one person who would be out for my blood. Or if I kill someone then one family or perhaps one family member might seek revenge. ("My name is Inigo Montoya. You killed my father. Prepare to die." But in our world, Inigo would not be able to claim that his killing of Count Rugen was manslaughter, would he?) By contrast, there could be thousands of people who would want to kill me for committing blasphemy; it's more of a wholesale matter. That's certainly true historically, and, unfortunately it is once again becoming true. Consider Salman Rushdie and the cartoonists and publishers of the Mohammed cartoons. Consider all the people who died in riots over those cartoons. Consider the members of religious minorities who are killed by mobs because of rumors of blasphemy. There are other distinctions that could be drawn, but I think this analysis makes my point. The purposes of our laws would be very seriously undercut if a religious blasphemy motivation were sufficient to turn murder into manslaughter. The damage to the law's purposes would substantially exceed the damage caused by the traditional mitigating factors that differentiate manslaughter from murder. Under Justice (then Judge) Alito's analysis in Fraternal Order of Police, I think this is not even close. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: Scarberry, Mark Sent: Wednesday, February 15, 2012 11:32 AM To: Law & Religion issues for Law Academics Subject: RE: Laws with exceptions as triggering strict scrutiny -- and as failing strict scrutiny because of their underinclusiveness? Eugene, I will try to respond to your hypos later today, but here is a non-hypothetical question: Do you think Fraternal Order of Police v. Newark was correctly decided? Best, Mark From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu]<mailto:[mailto:religionlaw-boun...@lists.ucla.edu]> On Behalf Of Volokh, Eugene Sent: Wednesday, February 15, 2012 9:44 AM To: Law & Religion issues for Law Academics Subject: RE: Laws with exceptions as triggering strict scrutiny -- and as failing strict scrutiny because of their underinclusiveness? Mark: A few hypotheticals: (1) Say that a state provides that adequate provocation makes killing manslaughter rather than murder, and that a particular set of behaviors - having sex with the defendant's spouse, having just beaten a defendant (but in a situation where the peril is over and no self-defense is allowed), and some other things - qualify as adequate provocation. And say that this defense is indeed used in dozens of cases a year. Someone kills someone for what he perceives is blasphemy, and argues that his religious sense of provocation should be treated the same as the provocation in the adultery, assault, etc. examples, so that he would be guilty only of manslaughter rather than murder. He argues that this presumptively entitles him to an exemption, and that it indeed the presumption can't be rebutted under strict scrutiny because murder law is underinclusive. (2) Someone feels a religious obligation not to testify against his children or parents, or against coreligionists, or in other contexts. He points to all the privileges recognized as defenses to the duty to testify, and argues that these exceptions presumptively entitle him to an exemption, and that indeed the presumption can't be rebutted under strict scrutiny because the duty to testify is underinclusive. (3) Someone feels a religious obligation not to hire women to work together with men, or not to hire women with small children at home. He points to the BFOQ exemption and to the exemption for small employers, both of which would exclude many more employees from Title VII's protection than would his proposed exemption. He argues that these exceptions presumptively entitle him to an exemption, and that indeed the presumption can't be rebutted under strict scrutiny because antidiscrimination law is underinclusive. (4) Someone feels a religious obligation to spread the word of God for free; that word happens to be in a book whose copyright is owned by others. His claim isn't just to a right to do this in church, but to a right to do this everywhere. He points to the many exceptions from copyright law, from 17 USC 107 to 17 USC 122 (each of the sixteen sections contains at least one exemption). He argues that these exceptions presumptively entitle him to an exemption, and that indeed the presumption can't be rebutted under strict scrutiny because copyright law is underinclusive. Is it really the case that all these laws should be subject to strict scrutiny - especially given that the underinclusiveness prong of strict scrutiny might well make the laws invalid under such a test? My thinking is that the answer is no. Most laws involve the reconciliation of competing interests, including competing private interests that the government is trying to protect; and I don't think that the fact that someone has a religious motivation to do something constitutionally entitles him to the best treatment available to others. That my rights as a copyright owner are limited in some ways to serve rival concerns doesn't mean that there's a constitutional obligation on the government's part to limit them further in order to serve some people's view of what God demands - a view that is not my view, and to which my rights should not, I think, bend. But whatever one might think of this as a matter of first principles, it seems to me that this "most favored nations" approach likely yields results, in cases such as the ones I described above, that are rightly seen as improper. Eugene ...
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