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 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.
