In connection with the discussion between the interplay between First
Amendment rights and "harm to others," any thoughts on the recent action
by the New York City Board of Health to enjoin a mohel from performing
circumcisions, as he generally performs them? The facts are these:
As part of the circumcision, the mohel orally suctions blood from the
wound. There has been much debate among Jewish law decisors about
whether that is required practice, but it is certainly the normative
practice among Hasidic Jews. Twin boys who were circumcised by this
mohel contracted herpes. Tragically, one died.
If the mohel tests positive for herpes, this is an easy case. But
presume he tests negative, but tests positive for herpes antibodies (as
do the vast majority of adult males)? Is this enough to bar the mohel -
who has been practicing for forty years - from performing circumcisions?
Is the City required to test the parents, hospital personnel and others
before taking action against the mohel? Is the City required to
establish a nexus between testing positive for antibodies and
transmitting the virus?
This is obviously a complex case, but it probably comes down to who has
the burden of proof and what are the standards? Any thoughts?
>>> [EMAIL PROTECTED] 03/11/05 8:43 AM >>>
As usual, it appears that we will not be able to change one another's
minds w/r/t the question whether piecemeal legislative accommodations
are superior to, or more constitutionally acceptable than, judicial
accommodations pursuant to a general statutory mandate. (And we're
certainly not moving the conversation materially beyond where Chip and
Doug and Michael McConnell and Bill Marshall and Jon Nuechterlein, and
others, left it several years ago.)
So let me ask another question, prompted by Marci's suggestion that
accommodations that "harm others" are unconstitutional. Surely, harm to
other private parties has played a large role in accommodation doctrine.
The general notion that the state should not require private party A to
suffer in the furtherance of B's religious objectives or beliefs is a
compelling and recurrent theme, and it explains Thornton and Hardison,
not to mention the important Harlan concurrence in Welsh and the Court's
decisions to expand the military exemption beyond religious objectors in
that case and in Seeger. And I agree with Marci that religious
exemptions to vaccination statutes, and to child welfarre laws, should
generally be unconstitutional because of the serious harms they cause.
But then how to explain the two cases in which the Court has approved
accommodations -- Zorach and Amos? We've recently discussed the serious
harm to nonparticipating students in the release-time cases. And in
Amos, the respondent (Mr. Mayson) lost his job of 16 years because he
failed to qualify for a temple recommend. 483 U.S. at 330. No small
harm to third parties. Is there any way to make sense of this aspect of
accommodation doctrine? What role should harm to third parties play in
assessing a religious exemption?
----- Original Message -----
From: [EMAIL PROTECTED]
To: religionlaw@lists.ucla.edu
Sent: Friday, March 11, 2005 8:19 AM
Subject: Re: Institutional Capacity to Manage Exemptions
Ellis--- I'm not sure what you mean by across-the-board exemptions.
If laws like RFRA, they are illegitimate, but if they are tailored to
particular practices, and the public good does not suffer from the
exemption, I think they are crucial to the proper balance of liberty and
order. The one thing a society cannot do is wish away the intense power
of religious belief in people's lives, whether that government is the
Soviet Union when it tried unsuccessfully to destroy the Orthodox
Church, China now trying to suppress Falun Gong and Christianity, or our
country. Religion is a given part of human existence, and deserves to
be given as much latitude as possible. Thus, the question is not
whether, but where to draw the line on exemptions. A mandatory
exemption system is inimical to the public good, especially those who
are most vulnerable. But an exemption that harms others is contrary to
the scheme of ordered liberty the Constitution constructs.
Marci
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?
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