I
really didn’t 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-Barry’s
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 don’t
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 isn’t 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 don’t 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 about
individual cases. Faxes, letters, and emails flow to them at a steady
clip. No constituent is barred from asking a legislator to address their
concerns, and they hear about a lot. If by "regularized
procedure" you mean that the legislature does not listen to the individual
according to the individual's own creation of a record, I'll agree. But
that is where the legislators can produce better accommodation results than a
court. They can search for the truth in a wide-ranging manner, the actual
practices, and the full impact of the accommodation on those that might be
victimized by it. Of course, this latter move requires a legislature to
ask the hard questions and not just to defer to religious entities,something
they fail to do on a regular basis, but as the harm done by certain religious
entities becomes clearer over time one can only hope that they will become more
serious about their duties to their constituents.
Marci
In a message dated 3/6/2005 7:47:53 PM Eastern Standard Time,
[EMAIL PROTECTED] writes:
There is no "persistent claim
that the only entity that matters in religious liberty cases is the
believer." The very point of the compelling interest test is to take
account of all the other interests that matters, and preventing significant
harm to others is always a compelling interest.
The reason legislatures properly delegate this judgment to courts in RFRA and
similar legislation is that only courts can find facts in individual cases,
only courts have to actually consider every case that is brought before them,
and only courts recognize any obligation to be principled and to treat like
cases alike. Which is not to say that courts always live up to these
ideals, or that courts always do better than legislatures.
But legislatures have no regularized procedure for bringing cases to their
attention, no balanced procedure for hearing both sides and finding facts in
individual cases, no obligation to take up politically difficult issues, and no
obligation that legislators recognize to be principled or treat like cases
alike. Issue-by-issue legislative exemptions inevitably lead to
favoritism in which politically popular, acceptable, or inoffensive religions
get helpful responses and small, unpopular, or hard-to-explain religions get
ignored.
Many high profile legislative exemptions were enacted after the religion that
needed the exemption lost a case in the Supreme Court -- eg, peyote in many
jurisdictions, yarmulkes in the military, the road in Lyng. The publicity
of a Supreme Court case can get you on the legislative agenda when nothing else
did.
Congress in its RFRA hearings wasn't even told about the most egregious cases
of religious persecution in the 80s and early 90s -- Santeria and the jury
verdicts against the Hare Krishnas, Scientologists, and other high-demand
religions. Everyone says Lukumi was an easy case, but Congress wouldn't
touch it. No Congressman wanted that used against him in his next
race. The only way Congress can protect the religions that most need
protection is to enact a general standard and look to courts to apply that
standard to individual cases. RFRA and RLUIPA illustrate the only
principled way to enact exemptions.
The Court has properly been concerned about exemptions that are too narrow or
targeted, in Kiryas Joel and in Justice O'Connor's concurrence in Thornton v.
Caldor. It is only the opponents of religious liberty that demand the
impossible -- legislatures acting case by case instead of enacting an
even-handed principle subject to a standard.
Having said all that, specific legislative exemptions have a legitimate role in
simplifying litigation by specifying that the legislature simply did not mean
to regulate some religious practices. But they leada to serious
discrimination unless backed up by a general right to exemption subject to a
standard.
Douglas Laycock
