I think Professor Brownstein's analogy between gay rights and free
exercise is a very important one.
Kenji Yoshino points out that having constitutional protections for
status but not for conduct means that groups that can assimilate are forced
to do so. And the pressure to assimilate takes many forms; Yoshino points
out how gay people are encouraged "to convert, to pass, and to cover."
Kenji Yoshino, Covering, 111 Yale L.J. 769, 774 (2002). (Though I'm being a
little loose here, 'to pass' means essentially to lie about one's sexual
identity, while 'to cover' means to downplay it.)
The word "convert" should flag for us the obvious parallels between
Yoshino's work and the law-and-religion context. So should the phrase
"status but not conduct" as it is the rule of Employment Division v. Smith.
It's just unavoidable that the Smith rule, without strong and
frequent legislative protection for religious exemptions, will force
religious observers to convert outright, to minimize their own religiosity,
or to change it to fit the government regulation -- religious people will
have "to convert, to pass and to cover." I find that lamentable.
Chris Lund
Christopher C. Lund
Visiting Assistant Professor
University of Houston Law Center
100 Law Center
Houston, TX 77204-6060
[EMAIL PROTECTED]
(713) 743-2553 (direct)
(713) 743-2122 (fax)
-----Original Message-----
From: A.E. Brownstein [mailto:[EMAIL PROTECTED]
Sent: Thursday, March 10, 2005 6:12 PM
To: Law & Religion issues for Law Academics
Subject: RE: Institutional Capacity to Manage Exemptions
>There are a variety of answers to this question -- about why religion is
>special and merits distinct constitutional consideration. I have written
>about several of them -- as have many other list members.
But let me add one answer that suggests something of an analogy between
religious liberty and gay rights. My colleague, Tobias Wolff, in writing
about gay rights, discusses a dynamic that he describes as "the denial of
the homosexual possibility." What he means by this is that the arguments of
some opponents of gay rights seem to be predicated on the idea that gay
people and their relationships don't exist or that they will somehow stop
existing (or being who they are) if only we do not adopt laws that
recognize their presence in our communities and their humanity.
I sometimes think a similar dynamic applies to religious identity, belief
and practices -- what we might call "the denial of the religious
possibility." The arguments of some opponents of religious exemptions and
accommodations seem to be predicated on the idea that religious people will
somehow stop existing (or being who they are, e.g., taking their religion
seriously) if only we do not adopt laws that recognize their presence in
our communities and their humanity.
But, of course, both gay people and religious people do exist. Laws that
ignore their existence do not change that reality -- any more than shutting
one's eyes to the hardships such laws cause makes those hardships any less
painful.
Alan Brownstein
UC Davis
>Prof Scarberry, I'm not sure that I understand your first point below. If
>it assumes that the majority's religion is being taught in the public
>schools, then the law that authorizes that teaching is not a valid,
>secular law in the first place, i.e., it is unconstitutional. As for your
>second point, although I happen to think that my own religion is special,
>at least to me, I don't think that all religions are special. Do you? If
>so, why? Even if you do think that all religions are special, do you
>really think that that is enough to justify government's granting
>religious persons/groups across-the-board exemptions from valid, secular
>laws? Would such an argument appeal to non-religious persons? If not,
>then isn't the only justification you are giving for across-the-board
>religion-based exemptions the fact that the majority of Americans are
>religious, favor such exemptions, and have a right to get what they want?
>
>Ellis M. West
>Political Science Department
>University of Richmond, VA 23173
>804-289-8536
>[EMAIL PROTECTED]
>-----Original Message-----
>From: [EMAIL PROTECTED]
>[mailto:[EMAIL PROTECTED] On Behalf Of Scarberry, Mark
>Sent: Wednesday, March 09, 2005 7:50 PM
>To: 'Law & Religion issues for Law Academics'
>Subject: RE: Institutional Capacity to Manage Exemptions
>
>One might ask, why should those who object to the majority's views on
>religion alone be given across-the-board exemptions from the majority's
>views taught to their children in public schools? My third-grade daughter
>is subject to being taught about all sorts of things that I might not
>like. (Not another unit on why we must protect all rain forests ...)
>
>
>
>I'm happy that there is an Establishment Clause that has some bite. But
>then I also think the Free Exercise Clause should have some bite. Religion
>is special; the state can't do much to support it, and the state must
>provide some extra space for private expression of it.
>
>
>
>Mark S. Scarberry
>
>Pepperdine University School of Law
>
>
>
>P.S. I'm not in favor of eradicating rain forests, but I feel about them
>sort of the same way Mark Twain felt about Michelangelo after Twain had
>been in Italy for a while.
>
>
>
>-----Original Message-----
>From: West, Ellis [mailto:[EMAIL PROTECTED]
>Sent: Wednesday, March 09, 2005 2:40 PM
>To: Law & Religion issues for Law Academics
>Subject: RE: Institutional Capacity to Manage Exemptions
>
>
>
>Although the issue of whether legislatures or courts are better qualified
>or more likely to grant religion-based exemptions is an interesting one,
>it is not the fundamental one, which is: Why should religious
>persons/groups, and they alone, be given across-the-board exemptions,
>whether by courts or legislatures, from valid, secular laws? Of course,
>religious persons/groups, like other person/groups, should be able to
>obtain from legislatures exemptions from specific laws that impose undue
>hardships on them in some way or the other. But why should they be
>granted across-the-board exemptions? It won't do to say that the First
>Amendment requires such, because that is the issue. Why should the First
>Amendment be interpreted to require such? I don't think members of this
>list-serv have ever adequately answered this question.
>
>Ellis M. West
>Political Science Department
>University of Richmond, VA 23173
>804-289-8536
>[EMAIL PROTECTED]
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