Marci,my comment was responding to Marty's and Tom Berg's earlier post, about harm to third parties being part of the criteria courts employ in determing whether an accommodation the legislature has granted should be struck down on Establishment Clause grounds. Several federal and state court decisions suggest this, but they are typically unclear about what constitutes suffcient harm or the kind of harm that violates the Establishment Clause. I don't know if you have a position on this, but I would be curious to know your thoughts. As your earlier response to Tom's post suggested, I don't think you are arguing that legislative discretion should control this Establishment Clause question -- but that means that we need to address the amount and kind of harm caused by an accommodation that would render it invalid.
Also, I understand that you believe as a matter of constitutional principle that determining whether religious exemptions or accommodations should be granted is exclusively the province of the legislature. I don't know whether you believe that principle is supported by a pragmatic evaluation of how legislatures deal with these issues in fact. But it would seem to me that it would be useful to know the cost or burden on religious liberty that your position entails. If legislatures do grant accommodations when third parties are not being harmed, that cost is lower than it would be if legislatures often deny exemptions even when relatively trivial state interests are at issue. That kind of pragmatic analysis, however, requires some understanding of what kinds of harms to third parties justify abridging religious liberty. Similarly, although I recognize that the normative or political question of whether an accommodation is justified is analytically different than the question of whether an exemption is constitutionally required, there is some utility in discussing the former issue as a backdrop to understanding the latter. For example, a person may strongly believe that the equal protection clause does not require rigorous review of laws that discriminate against the disabled, but be equally committed to the enactment of federal and state legislation to protect the civil rights of the disabled. In many of your posts on this list, you cite religious accommodations that are inappropriate and/or unconstitutional because of the harm that they cause to third parties or the public good. Again, I am curious to know what legislatively determined religious accommodations you recognize as legitimate and support -- which is basically asking how you define harm to third parties and the public good. Alan Brownstein UC Davis Marci wrote > We actually don't have to figure out "harm to third parties." That, in my > view, is the job of the legislatures. I say in my book, though, that in this > era, legislatures have been knee-jerk providers of religious accommodations > without asking whether someone could be harmed by the law. It boggles the > mind to think that Congress could have considered RFRA for 3 years, which was > going to potentially hobble every law in the country, without asking whether > someone might get hurt if many laws were suspended as applied to religious > entities. Religious entities should have latitude like any other groups to lobby > to their advantage, but legislators are supposed to ask the hard questions > (even when society is not asking them). > > Marci > > > > > we would first have to figure out how to define > what constitutes "harm to third parties" -- which is no easy undertaking > > > > > -------------------------------1110634583 > Content-Type: text/html; charset="US-ASCII" > Content-Transfer-Encoding: quoted-printable > > <!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN"> > <HTML><HEAD> > <META http-equiv=3DContent-Type content=3D"text/html; charset=3DUS- ASCII"> > <META content=3D"MSHTML 6.00.2900.2604" name=3DGENERATOR></HEAD> > <BODY id=3Drole_body style=3D"FONT-SIZE: 10pt; COLOR: #000000; FONT- FAMILY:=20= > Arial"=20 > bottomMargin=3D7 leftMargin=3D7 topMargin=3D7 rightMargin=3D7><FONT id=3Drol= > e_document=20 > face=3DArial color=3D#000000 size=3D2> > <DIV>To clarify my earlier postings before I had to run my kids around to 14= > =20 > different activities--</DIV> > <DIV>I did not mean "forced accommodation" in the sense Doug interpreted=20 > it. I meant that there are times when neutral, generally applicable la= > ws=20 > require assimilation. Only when an accommodation is enacted by a=20 > legislature for the purpose of lifting a burden on religion and only when th= > at=20 > accommodation does not harm others is assimilation permissibly avoided.</DIV= > > > <DIV> </DIV> > <DIV>I did not mean to say, Ellis, that across-the-board exemptions are ever= > =20 > good ideas. Mandatory exemptions were clearly not required when the Fi= > rst=20 > Amendment was drafted or ratified, and is not a credible approach. =20 > Permissive legislative accommodation, though, is valuable in a world wh= > ere=20 > religious belief is an avoidable element of human existence.</DIV> > <DIV> </DIV> > <DIV>We actually don't have to figure out "harm to third parties." Tha= > t,=20 > in my view, is the job of the legislatures. I say in my book, tho= > ugh,=20 > that in this era, legislatures have been knee-jerk providers of religious=20 > accommodations without asking whether someone could be harmed by the law.&nb= > sp;=20 > It boggles the mind to think that Congress could have considered RFRA for 3=20 > years, which was going to potentially hobble every law in the country, witho= > ut=20 > asking whether someone might get hurt if many laws were suspended as applied= > to=20 > religious entities. Religious entities should have latitude like any o= > ther=20 > groups to lobby to their advantage, but legislators are supposed to ask the=20= > hard=20 > questions (even when society is not asking them).</DIV> > <DIV> </DIV> > <DIV>Marci </DIV> > <DIV> </DIV> > <DIV> </DIV> > <DIV> </DIV> > <BLOCKQUOTE=20 > style=3D"PADDING-LEFT: 5px; MARGIN-LEFT: 5px; BORDER-LEFT: blue 2px solid"><= > FONT=20 > style=3D"BACKGROUND-COLOR: transparent" face=3DArial color=3D#000000>we wo= > uld first=20 > have to figure out how to define <BR>what constitutes "harm to third parti= > es"=20 > -- which is no easy undertaking <BR></FONT></BLOCKQUOTE> > <DIV></DIV> > <DIV> </DIV></FONT></BODY></HTML> > > -------------------------------1110634583-- > _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. 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