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In a message dated 2/10/2004 3:24:29 PM Eastern Standard Time, [EMAIL PROTECTED] writes:
It seems to me, however, that legal rules regulating behavior (particularly those that place limits on fundamental rights like free exercise to religion) work better when they do take reality into account, rather than trying to address theoretical or conceptual problems that do not actually reflect reality. Three points are central to the above. First, what does it mean to say that such rules "work better"? And for whom do they do so? Second, do they work better because most religious or conscientious people in this country, especially in law school, do not regard the type of examination Eugene proposed to be problematic? In other words, most people make a sharp distinction between using a term (concept, dialogue, description, etc.) and mentioning the term. Thus, to use an example intended not to offend anyone on the List, suppose for some people or religions the word "chair" was similar to the word Chief Justice Burger hoped Professor Niimmer would not say or similar to what some people on the List would consider blasphemous. Most people, as reality is presently constituted, in this example, would have no trouble mentioning the term '"chair,"' though, perhaps, none of them would use it. This distinction can be extended to arguments and any activity using language. If this fact changed, that is, if the use-mention distinction, as I indicate in the example, failed to be descriptively true of most people in this country, the number of exemptions sought would, I think, drastically increase. (Of course, it is possible to have conscientious reasons for rejecting this distinction itself. But then we are in deep trouble.)
In these circumstances, I suggest, nothing approaching a neutral rule would be possible. At best, we would have to be content with a rule that permitted the most exemptions without swallowing the rule. Nevertheless, problems would abound. Chief among these problems would be how to protect members of abhorrent (to us) minority religions whose requests for exemptions we will just not grant? A legion of hypothetical examples is available, but I've been chastised for not sticking to 'reality,' and so I will do so.
Suppose a member of the Taliban refuses to write a majority and dissenting opinion on gender equality because the idea of "gender equality" is to him anathema. Do we grant the exemption or not? Suppose members of certain some strains of Islam refuse to write on the topic of ordinary American penalties for theft because to them cutting off the thief's hand is the only conceivable penalty. I am not claiming that either religion compels its members not to write on such issues, but what if individual members interpret their religions to prohibit writing. What about exemptions for them? Further real world examples can, of course, be given.
The reason for seeking conceptually adequate rules for exemptions is not based on a desire or need to escape reality. Rather, it is the recognition that reality changes, or, as I would prefer to say, the relevant facts change. Religions, or so I'm told, are multiplying, and different interpretations of standard religions are not only possible, but in fact occur often. Absent a consistent rule, granting exemptions to some and not others---which is the only way to avoid swallowing rules--appears to be and indeed is arbitrary. In a world where religions and their interpretations are rather stable, we avoid the need for a conceptually consistent rule for all occasions. But in this situation we achieve consistency only because we are lucky that the range of cases are rather limited, and that most people take the use-mention distinction to heart. (Such a person can mention anything, even terms, and arguments, she would never consider using in her own voice.)
Finally, what about contemporary reality? Suppose individuals seek exemptions from being compelled to write majority and dissenting opinions on any of the following: abortion, gay and lesbian marriage, war, flag desecration, the right to die, adultery, taxes, and so forth. My point is that we are lucky that most people take the use-mention distinction to heart, and do not feel the need to avoid referring to terms and argument, they themselves would not use. This contingent fact makes us lucky that we don't have to seek a general principle or rule for granting some but not other requests for exemptions from exam questions. In this world--our present world--I'm perfectly prepared to grant exemptions to students, though I've never been asked to do so. But should this fact change--should students start to request exemptions on mass--we do not have, nor do I think we could have, a consistent rule for granting some and denying others. We should be chastened by this fact, I would think, and realize that rather than having a right to an exemption, people are lucky that present 'reality' is such that nothing dire would happen if we granted exemptions rather liberally.
Regarding Smith, it is not obvious to be that Justice Scalia is right about current reality. And so I see no need to give up strict scrutiny as the standard of review concerning the effects generally applicable laws have on religious freedom, especially minority religious freedom. But again, I would insist, we are lucky to be in such circumstances, and should our circumstances, change Justice Scalia might have the last laugh.
Bobby
Robert Justin Lipkin Professor of Law Widener University School of Law Delaware |
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